United States v. Lee Wilson & Co.

Decision Date20 February 1914
Docket Number283.
Citation214 F. 630
CourtU.S. District Court — Eastern District of Arkansas

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

W. H. Martin, U.S. Atty., of Hot Springs, Ark., Willis N. Mills, of San Francisco, Cal., and J. A. Tellier, of Little Rock, Ark., Special Asst. Attys. Gen., for the United States.

Coleman & Lewis, of Little Rock, Ark., for defendant.

TRIEBER District Judge (after stating the facts as above).

It is undisputed that all the lands in that township were swamp and overflowed lands at the time of the enactment of the Swamp Land Act of September 28, 1850 (9 Stat. 519, c. 84), and continued as such until recently, when levees were built and a drainage canal dug; that the lands in controversy were resurveyed in 1910; that the field notes of the survey, made in 1839 and 1840 (although the parties speak of this survey as of 1841) were filed with the surveyor of public lands for Arkansas in 1841, and the plat made therefrom, which was approved in 1845, shows that these lands were described as a nonnavigable lake and meandered as such. But it is claimed on behalf of the plaintiff that, in fact, there was no lake or permanent body of water of any kind there at the time of the original survey and long before that time, and that the survey describing these lands as a lake was fraudulent; that the surveyor never ran any meander lines on the ground, but made them fraudulently, and, the lands being in fact unsurveyed lands, the title thereto never passed from the government; that by the compromise between the United States and the state of Arkansas, approved by Act Cong. April 29, 1898, c. 229, 30 Stat. 368, the state of Arkansas relinquished to the United States all adjusted or unadjusted claims under the Swamp Land Act of 1850 and that of 1857 not theretofore disposed of.

On the other hand, it is insisted that there was a nonnavigable lake or permanent body of water on these lands at the time the original survey was made. In order that the facts may be better understood, a copy of the original plat made from the field notes approved in 1845 is made an appendix to this opinion. From this plat it will be seen that, according to the field notes of the surveyor, there was at that time a lake as claimed by the defendant, and that it was properly meandered. It is therefore claimed that, the defendant being admittedly the owner of all the surveyed lands outside of the meander lines, it is, as the riparian owner, under the laws of the state of Arkansas as construed by the highest court of that state, entitled to the lands described as a 'lake,' which are the lands now in controversy.

Under the laws of this state the riparian owner on a nonnavigable body of water is the owner to the center of the lake. Railway Company v. Ramsey, 53 Ark. 314, 13 S.W. 931, 8 L.R.A. 559, 22 Am.St.Rep. 195; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S.W. 534; Rhodes v. Cissel, 82 Ark. 367, 101 S.W. 758; Glasscock v. National Box Co., 104 Ark. 154, 148 S.W. 248; Harrison v. Fite, 148 F. 781, 783, 78 C.C.A. 447, a case involving similar lands in the state of Arkansas. A rule of property thus established by the highest court of the state is binding on the national courts. Hardin v. Jordan, 140 U.S. 371, 11 Sup.Ct. 808, 838, 35 L.Ed. 428; Hardin v. Shedd, 190 U.S. 508, 23 Sup.Ct. 685, 47 L.Ed. 1156; Kean v. Calumet Canal Co., 190 U.S. 452, 23 Sup.Ct. 651, 47 L.Ed. 1134.

But it is equally well settled by the decisions of the Supreme Court of the United States that the making of a meander line has no certain significance. French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 52, 22 Sup.Ct. 563, 46 L.Ed. 800. 'It does not necessarily import that the tract on the other side of the meander lines is not surveyed or will not pass by a conveyance of the upland shown by the plat to border on the lake. It is not always a boundary. ' Kean v. Calumet Canal Co. supra. Nor does it follow that a patent for the surveyed lands adjoining carries with it the lands inside the meander lines. Horne v. Smith, 159 U.S. 40, 45, 15 Sup.Ct. 988, 40 L.Ed. 68; Niles v. Cedar Point Club, 85 F. 45, 29 C.C.A. 5, affirmed in 175 U.S. 300, 20 Sup.Ct. 124, 44 L.Ed. 171; Hardin v. Jordan, supra.

Evidence showing that the meander line was not at or near the water would make it a boundary, and that regardless of whether the running of the water line was a mere oversight or whether the surveyors were of the opinion that the action of the water would soon wash the lowlands away. Security Land & Exp. Co. v. Burns, 193 U.S. 167, 186, 187, 24 Sup.Ct. 425, 48 L.Ed. 662. In Horne v. Smith, supra, it was held:

'Although it was unsurveyed, it does not follow that a patent for the surveyed tract adjoining carries with it the land which perhaps ought to have been, but which was not in fact, surveyed. The patent conveys only the land which is surveyed, and when it is clear from the plat and the surveys that the tract surveyed terminated at a particular body of water, the patent carries no land beyond it.' 159 U.S. 45, 15 Sup.Ct. 990, 40 L.Ed. 68.

If no survey was in fact made, or no meander line in fact run, or if no body of water in fact existed near the alleged meander line, the government cannot be estopped by the fact that the field notes and plat made therefrom show the existence of a lake. Kirwan v. Murphy, 189 U.S. 35, 53, 54, 23 Sup.Ct. 599, 603 (47 L.Ed. 698). In that case it was held:

'The Land Department must necessarily consider and determine what are public lands, what lands have been surveyed, what are to be surveyed, what have been disposed of, what remain to be disposed of, and what are reserved. * * * The administration of the public lands is vested in the Land Department, and its power in that regard cannot be divested by the fraudulent action of a subordinate officer, outside of his authority, and in violation of the statute. Whiteside v. United States, 93 U.S. 247 (23 L.Ed. 882); Moffat v. United States, 112 U.S. 24 (5 Sup.Ct. 10, 28 L.Ed. 623); Hume v. United States, 132 U.S. 406, 414 (10 Sup.Ct. 134, 33 L.Ed. 393). The courts can neither correct nor make surveys. The power to do so is reposed in the political department of the government, and the Land Department, charged with the duty of surveying the public domain, must primarily determine what are public lands subject to survey and disposal under the public land laws. Possessed of the power, in general, its exercise of jurisdiction cannot be questioned by the courts before it has taken final action. Brown v. Hitchcock, 173 U.S. 473 (19 Sup.Ct. 485, 43 L.Ed. 772).'

To the same effect are the late decisions in Little v. Williams, 88 Ark. 37, 113 S.W. 340, affirmed in 231 U.S. 335, 34 Sup.Ct. 68, 58 L.Ed. 256; Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U.S. 186, 34 Sup.Ct. 297, 58 L.Ed. . . . (opinion delivered January 26, 1914).

The rules of law as established by the numerous decisions of the Supreme Court on that subject may be epitomized as follows: If there were no mistakes made in the survey, and a permanent body of nonnavigable water was properly meandered, the ownership of the meandered tract is controlled by the laws of the state in which the lands are situated, and if they hold that such an owner is entitled to claim ownership to the center of the lake, the national courts will follow that rule. If, on the other hand, the surveyors were mistaken or acted fraudulently, and there was at the time of the survey a large tract of land beyond the meander lines, uncovered by permanent bodies of water (exceptional dry seasons of course excepted), purchasers of the fractional tracts bounded by the meander lines are not entitled to the land not included in the survey; the meander lines constituting, in that case, boundaries.

The Secretary of the Interior in 1908, after a hearing upon notice, at which many parties, some of them squatters who wanted to acquire them as homesteads, others claimants as riparian owners, such as the defendant in this case claims to be, and also representatives of the St. Francis levee district, were present and heard, ordered a survey of these meandered lands in order that they might be brought under the operation of the laws governing the disposal of like public lands. Arkansas Sunk Lands, 37 Land Dec. Dep. Int. 345. The Secretary made a finding that these lands were not covered by any permanent body of water at the time of the original survey, or at the time of the enactment of the Swamp Land Act, or when the state made its selection. He further found:

'It seems clear from what is now before the department that a permanent body of water did not occupy these lands at the time of the public survey, and that, except as to a portion shown to be high and dry upland, sometimes referred to as highlands, the great body of the land was swamp and overflowed lands both at the date of the public survey and the passage of the swamp land grant of 1850.'

This was adhered to on an application for a rehearing had in 1909. 37 Land Dec.Dep.Int. 462.

That the Secretary of the Interior has the power to inquire into the extent and validity of the rights claimed against the government until the legal title has passed is undoubted. Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 593, 18 Sup.Ct. 208, 42 L.Ed. 591, and authorities there cited. A survey was accordingly made in 1910. This last survey shows the land in controversy, as will be seen from a copy of the plat filed with this opinion.

Assuming as is claimed by counsel for the defendant, that this finding of the Secretary is not conclusive, there is...

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