Trs. of Sch. v. Schroll

• Decision Date: 12 May 1887
• Citation: 12 N.E. 243,120 Ill. 509
• Parties: TRUSTEES OF SCHOOLS and others v. SCHROLL and others.
• Court: Illinois Supreme Court

120 Ill. 509

12 N.E. 243

TRUSTEES OF SCHOOLS and others

v.SCHROLL and others.

Supreme Court of Illinois.

May 12, 1887.

Appeal from circuit court, Morgan county.

Ejectment by trustees of schools of township 16, range 13, to recover that part of section 16, township 16, range 13 W., of third principal meridian, in Morgan county, Illinois, lying east of lots 1, 2, and 3, and west of lots 4 to 13, in said section. The lands in controversy are, in fact, part of the bed of a sheet of water known as ‘Meredosia Lake.’ Judgment for defendants. Plaintiffs appeal.Gallon & Thompson

, for Trustees of Schools, appellants.

Morrison & Whitlock, for Schroll and others, appellees.

SHOPE, J.

Fractional section 16 was, by the United States, ‘granted to the state, for the use of the inhabitants of such township, for the use of schools.’ Enabling Act of Congress, April 18, 1818, (3 U. S. St. at Large, 428;) Organic Laws Ill. 1 Gross' St. (19.) And this enabling act was formally accepted by an ordinance of the constitutional convention of August 26, 1818. Laws Ill. 1819, Appendix, 21; Organic Laws Ill. 1 Gross' St. (20.) The enabling act and ordinance constituted, as this court held in Bradley v. Case, 3 Scam. 585, a solemn compact between the United States and this state, whereby the state of Illinois became the purchaser of the school section for a valuable consideration, with full power to sell or lease the same for the use of schools, as the state might provide, and think most beneficial to the inhabitants of the respective townships.

Sections 16, in the several townships in the state, having been granted and accepted as above stated, were not public lands within the act of congress of March 30, 1822, (3 U. S. St. at Large, 659,) authorizing the state ‘to survey and mark, through the public lands of the United states, the route of the canal connecting the Illinois river with the southern bend of Lake Michigan,’ ( Canal Trustees v. Haven, 5 Gilman, 548;) and for the like reason we must hold that they were not ‘swamp and overflowed lands, made unfit thereby for cultivation,’ remaining ‘unsold at the passage of’ the act of congress of September 28, 1850, (9 U. S. St. at Large, 519;) being an act ‘to enable the state of Arkansas and other states to reclaim the swamp lands within their limits.’ After the grant in 1818, they ceased to be public lands of the United States, nor could they after that time be regarded as unsold lands, and so they were unaffected by the swamp-land act.

When, therefore, the defendants in this case offered in evidence the deed of the county clerk of Morgan county, purporting to have been made by order of the county board of that county, on the authority of the laws of this state relating to swamp and overflowed lands, and to convey parts of this school section, the offer should have been denied, and it was error in the circuit court not to have sustained the plaintiff's objection. And this is so, independent of all questions as to whether the uncertain and defective description of the premises said to be part of this particular section rendered the deed inoperative to that extent, or whether the premises attempted to be conveyed formed any part of the lands sued for or bounded thereon. When, therefore, the official character of appellants was admitted, and the enabling act and ordinance of acceptance had been offered in evidence, appellants' right of recovery was complete, unless it could be shown that the state had parted with the title to the lands described in the declaration, or that the township authorities had parted with or lost their right of possession in the same.

It is contended by appellees that Meridosia lake is a stream of water some five miles in length, and emptying into the Illinois river; and that appellants, by the proper officers, having platted and sold the land to the margin of and bordering on the stream, the grantees took to the middle of the stream; that the title of such grantees is an outstanding title; and appellees, being shown to be in possession under such grantees, rightfully prevailed in the circuit court, and ought to prevail here. The books and authorities are all agreed that streams and bodies of water within the ebb and flow of the tide are, at common law, navigable; and the riparian proprietor's title does not, speaking generally, extend beyond the shore. And it is equally well settled that grants of land, bounded on streams or rivers above tide-water, carry the exclusive right and title of the grantee to the center of the stream, usque ad filum aquoe, subject to the easement of navigation in streams navigable in fact, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the stream. 3 Kent, Comm. 427; 2 Hil. Real Prop. 92; Ang. Water-Courses, § 5; Jones v. Soulard, 24 How. 41;Indiana v. Milk, 11 Fed. Rep. 389; Canal Appraisers v. People, 17 Wend. 596;Child v. Starr, 4 Hill, 369;Seaman v. Smith, 24 Ill. 521;Rockwell v. Baldwin, 53 Ill. 19;Braxon v. Bressler, 64 Ill. 488;Washington Ice Co. v. Shortall, 101 Ill. 46.

But an entirely different rule applies when land is conveyed bounded along or upon a natural lake or pond. In such case the grant extends only to the water's edge. Ang. Water-Courses, §§ 41, 42; 3 Kent, Comm. 429, note a; citing Bradley v. Rice, 13 Me. 201, and Waterman v. Johnson, 13 Pick. 261. See Warren v. Chambers, 25 Ark. 120; Indiana v. Milk, (U. S. Circuit Court, Dist. Ind., GRESHAM, J.,) 11 Fed. Rep. 389; citing Wheeler v. Spinola, 54 N. Y. 377;Mansur v. Blake, 62 Me. 38; State v. Gilmanton, 9 N. H. 461;Paine v. Woods, 108 Mass. 160;Fletcher v. Phelps, 28 Vt. 257;Austin v. Rutland R. Co., 45 Vt. 215;Boorman v. Sunnuchs, 42 Wis. 233;Delaplaine v. Chicago & N. W. Ry. Co., Id. 214; Seaman v. Smith, 24 Ill. 521. See, also, Nelson v. Butterfield, 21 Me. 229;West Roxbury v. Stoddard, 7 Allen, 158;Canal Com'rs v. People, 5 Wend. 423, 446;Jakeway v. Barrett, 38 Vt. 316;Primm v. Walker, 38 Mo. 99;Wood v. Kelley, 30 Me. 47.

The line of defense adopted by appellees, as before stated, presupposes the existence of certain facts, viz.: (1) That appellants, being owners of section 16, granted the lands abutting upon the water spoken of as Meridosia lake, within such section bounding such grants along or upon the margin of such water; (2) that Meridosia lake is not, at the common law, navigable; (3) that Meridosia lake, and within the bounds of section 16, is a stream or river, as contradistinguished from a lake; and (4) that the terms of the grant do not clearly denote an intention to stop at the edge or margin of the stream.

If the record in this case shows the existence and concurrence of all these facts, this judgment, upon the authority of the cases cited, may be affirmed; but, if it shall appear that the case made by the record does not show the existence of the supposed facts, reversal must follow. It is not pretended that Meridosia lake is a stream or body of water navigable at common law,-that is to say, it is not within the ebb and flow of the tide; and hence the rules of law applicable in such case cannot be invoked. The contention is that Meridosia lake is a stream of water about five miles long, emptying into the Illinois river, with its southern extremity and outlet within the bounds of section 16. A careful examination of the records shows that this lake is a natural body of water, five or six miles long, and in some places a mile in width; that it is fed by springs; that its southern extremity extends into section 16; that it has no connection with any stream of water, except by a slough at the south end, and near the south line of section 16; that the body of the lake, in its natural state, is without current; but that during a portion of the year a current of water passes from the lake, through the slough referred to, into the Illinois river, which flow, however, is stopped in the summer. The record does not show the average width of the lake, the average depth of the water in the lake in its natural state, nor whether or not it is in fact navigable; nor are we able to learn therefrom the length and width of the slough, nor the depth of the water flowing through the same, or the rapidity of the flow from the lake into the river at the natural stage of water in the lake. All we can know of this outlet we must gather from the plat made by the township trustees in 1846, taken in connection with the fact testified to by witnesses, that, for a portion of the year, some water from a land-locked natural body of currentless water, five or six miles long, and in places a mile in width, flows therethrough; and from this alone we are asked to find and hold that such a...