Tuesburg Land Company v. State

• Decision Date: 23 June 1921
• Docket Number: 10,809
• Citation: 131 N.E. 530,78 Ind.App. 327
• Parties: TUESBURG LAND COMPANY ET AL. v. STATE OF INDIANA
• Court: Indiana Appellate Court

131 N.E. 530

78 Ind.App. 327

TUESBURG LAND COMPANY ET AL. v. STATE OF INDIANA

No. 10,809

Court of Appeals of Indiana

June 23, 1921

Rehearing denied October 14, 1921.

Petition to transfer dismissed June 2, 1922.

From St. Joseph Circuit Court; Walter A. Frank, Judge.

Action by the State of Indiana against the Tuesburg Land Company and others. From a judgment for plaintiff, the defendants appeal.

Affirmed.

Grant Crumpacker, Owen L. Crumpacker, Lemuel Darrow, Earl Rowley and Will R. Wood, for appellants.

U. S Lesh, Attorney-General, James E. McCullough and Edward M. White, for appellee.

OPINION

NICHOLS, P. J.

Action by appellee against appellants to quiet title to certain lands in Starke and Laporte counties, Indiana, along the Kankakee river, which lands are commonly known as "meandered lands." At a former trial, the issues were decided against appellee, and after obtaining a new trial as of right, the judgment was a second time against appellee. From this judgment an appeal was prosecuted to the Appellate Court, and the judgment of the trial court was reversed. See State v. Tuesburg Land Co. (1915), 61 Ind.App. 555, 109 N.E. 530, 111 N.E. 342. The opinion is long, covering about forty-seven pages of the official report, and fully states the facts there and here involved, and we do not need to repeat them. After the cause was remanded, it was tried by a jury, and at the close of the evidence, the trial court directed the jury to return a verdict for appellee. From the judgment on the verdict this appeal is prosecuted.

Upon the substantial question involved, the decision in the former appeal is against appellants, and it is conceded, appellant so stating in oral argument, that if the law as announced in that appeal stands as the law of the case, appellants' rights for which they here contend are precluded, and they must fail in this appeal. It is their claim that what passed from the United States to the state under the Swamp Land Act, and under patents made pursuant thereto is a Federal question; that the decisions of the United States Supreme Court are binding and controlling on this court, and that since the prior decision in this case, the Supreme Court of the United States, in Wilson & Co. v. United States (1917), 245 U.S. 24, 38 S.Ct. 21, 62 L.Ed. 128, has decided the question involved adversely to appellee, and that therefore the decision in the former appeal can no longer be considered, and is not the law of this case. Much of appellants' brief is occupied in a discussion and criticism of the former opinion, and in presenting the law as appellants contend that it should be, regardless of that decision. But, as we view the case, we do not need to review that decision nor appellants' discussion and criticism of it, nor do we need to consider appellants' view of the law except as to the controlling force of the subsequent Federal decision aforesaid. Many authorities are collated in 1 Indiana Digest, Appeal, § 1097, on the rule of Law of the Case, and we do not need to cite them here.

The case of Wilson & Co. v. United States supra, upon which appellants rely, concerned a tract of swamp land in the State of Arkansas. The survey of a township by mistake or fraud showed a body of water excluded therefrom by a meander line, thereby diminishing the acreage surveyed and the area of the surveyed land within the exterior boundaries of the township, when in fact there was no lake within such meander line. Thereafter the State of Arkansas selected said township under the grant to it of swamp lands by the Swamp Land Act of 1850, stating the acreage conformably to the reduction so made by the meander line. The selection was confirmed by congress, and a patent issued for said township described as containing a specified number of acres substantially conforming to the reduction brought about by excluding the area within the meander line. It was held that though the land within the meander line, the imaginary body of water, was within the exterior boundaries of the township, and was eligible to be selected under the Swamp Land Act, it did not pass under the grant to the state, as the meander line excluded it absolutely from the township, and its nature and character depended, not upon the exterior lines of the township, but upon the condition existing within those lines. In reaching its decision, the Supreme Court states two...