United States v. Zager

• Decision Date: 29 February 1972
• Docket Number: Civ. A. No. 67-C-384.
• Citation: 338 F. Supp. 984
• Parties: UNITED STATES of America, Plaintiff, v. Harold Wesley ZAGER et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

338 F. Supp. 984

UNITED STATES of America, Plaintiff, v. Harold Wesley ZAGER et al., Defendants.

Civ. A. No. 67-C-384.

United States District Court, E. D. Wisconsin.

February 29, 1972.

David J. Cannon, U. S. Atty., by Joseph P. Stadtmueller and Richard P. Broder, Asst. U. S. Attys., Milwaukee, Wis., for plaintiff.

Robert J. Kay, Madison, Wis., for defendants.

OPINION AND ORDER

REYNOLDS, District Judge:

This is a quiet title action involving 74.56 acres of land in Forest County, Wisconsin, brought by the United States pursuant to Title 28 U.S.C. § 1345.

The crux of the dispute is that in 1938 when the Government resurveyed Section 7, Township 38 North, Range 12 East, 4th Principal Meridian, in Forest County, it found that the meander line made of Lake Julia in the Government's original survey of 1859 was erroneous, and that 112.11 acres of land (74.56 of which are in dispute today) lay between the meander line of 1859 and the meander line of 1938. The Government claims that none of the disputed land was ever transferred from Government ownership. The defendants, who are owners of the lots abutting the 1859 meander line, claim the contrary.

On February 6, 1968, I ruled that a prior default judgment against the Secretary of the Interior in a quiet title action involving this land, Zager v. Udall, C.A. No. 65-C-171 (E.D.Wis.1966), was not res judicata against the United States. United States v. Zager, 280 F. Supp. 877 (E.D.Wis.1968). Subsequently this case was tried before me on the merits. In this opinion, which represents my findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure, I find for the defendants.

I. THE FACTS

The Surveys and the Land. In 1859 William E. Daugherty, a deputy surveyor under Government contract, subdivided Township 38 and meandered the several lakes within it.¹ On the basis of Mr. Daugherty's notes an official Government plat was drawn up indicating the various bodies of water and dividing the land into lots. The plat of 1859 indicates that Lake Julia comprised roughly one-third of Section 7 of Township 38. Another third of the section was subdivided into four lots designated 1, 2, 3, and 4, each shown to abut a portion of Lake Julia's shore line.

It was further indicated that Lot 1 consisted of 40.60 acres, Lot 2 of 46.80 acres, Lot 3 of 56.60 acres, and Lot 4 of 63.05 acres, for a total of 207.05 acres.

In 1938 Section 7 was resurveyed by the Government and a new plat was drawn up and accepted in 1942. The new plat indicated that Lake Julia took up substantially less than a third of the section and that a substantial amount of land lay between the 1859 meander line and the 1938 meander line. This omitted land was in turn divided into five lots designated 5, 6, 7, 8, and 9. Lot 5 consists of 29.77 acres, Lot 6 of 22.96 acres, Lot 7 of 3.69 acres, Lot 8 of 4.09 acres, and Lot 9 of 51.60 acres, for a total of 112.11 acres. The total acreage of Lots 1 through 9 then is 319.16 acres, 112.11 of which were omitted from the 1859 survey. Stated in terms of percentages, the land omitted from the 1859 survey is 35.13 per cent of the total acreage of Lots 1 through 9. Alternatively, stated in terms of a ratio, the ratio of surveyed land to omitted land is roughly 2:1.

Defendants have not contested the accuracy of the 1938 survey, and photographs of Section 7 taken from the air attest to the fact that the 1938 meander line comports to reality. It is equally clear from the testimony that the shoreline of Lake Julia today is substantially the same as it was in the mid nineteenth century. Thus, the discrepancy between the 1859 and 1938 surveys must be attributed to Mr. Daugherty. But if the error lay at Daugherty's feet, the Government produced little evidence as to the cause of the error. Thus, there is no evidence of fraud or of a "paper survey"; rather it is clear that a meander of Lake Julia was actually made by Daugherty. Nor can this be termed a simple case of incompetence, for as the Government stated in its closing argument, "there is no question but what the great percentage of his Daugherty's work was in fact accurate." On the other hand, error in a nineteenth century Government survey is anything but unusual. Indeed, one of the Government's expert witnesses from the Bureau of Land Management agreed on cross-examination with the statement that "there were just a fantastically large number of errors of different sizes and proportions in surveying of the meanders of lakes and streams at this time 1859."

While it would be but conjecture to single out the cause for error in the 1859 survey, the land surveyed and the history of Government surveys in Wisconsin do offer some suggestions as to what might have happened.

"There are several reasons why meandering was loosely done. In the first place surveys were rushed to completion to prevent timber trespass. The report of the Surveyor General for the Wisconsin district to the Commissioner of the General Land Office states that in many places the timber was the most valuable consideration, and that the government would be unable to dispose of those lands which had been logged before the survey. The surveying crews were rushed to keep ahead of timber trespassers who operated along driveable rivers.

"Wisconsin surveys were supervised by a Surveyor General located at Dubuque, Iowa. It is a long distance from Dubuque to the northern part of our state. Tote roads were the thoroughfares for the greater part of the distance. Inspection was naturally more lax than it would have been if the district office had been located within the state.

"The shorelines of many lakes were overfallen with trees and brush making traversing difficult. Hence the surveyors kept their line back some distance from the shore to insure good going. If they encountered a marshy strip or bay they ran the meander line around such areas also, because they were of the opinion that timber was the only valuable consideration in the sale and purchase of the land. Since marshes were devoid of timber, they were shown as water.

"Peninsulas and points frequently escaped the attention of the surveyors because at the price of land at that time they were not worth much consideration.

"Then, too, there is evidence of `paper' surveying, where a surveyor, knowing the difference in latitude and departure between two adjacent meander posts, computed a traverse between them. As a result, a poor approximation of the actual feature was plotted on the government plat.

"It is also true that many of the surveys in our northern counties were completed at a loss to the contractors. Contracts let in 1860 and 1861 were fulfilled in 1863 and 1865 when money had depreciated fully fifty per cent.

"The surveyors are not to be held for these irregularities in general. It was the policy of the government to run meander lines in an approximate way. The land had little value, and the surveys were made as accurately as the price of the land warranted. It little mattered if a tract lay outside the meander line; the cost of running a traverse around the area might have exceeded its value. Leaving swamps outside was of little consequence, since they were usually devoid of merchantable timber, and timber was presumed to be the only asset. (Surveyor General's Report to the Commissioner of the General Land Office, 1860.) The government was satisfied that the surveys were adequate enough for the purpose of conveying all of the land along the water courses, and the lands were patented without reservation.²

In the instant case the omitted land is to a large extent marsh land. Daugherty described the entire township as follows:

"Over one half of this Township is swamp, which is wholly unfit for cultivation. The soil on the dry land is very thin and poor, worth but little for purposes of agriculture. A large majority of the timber (except in the swamp) is * * * ? — look ? of a heavy growth."

In 1938, of the 417.74 acres resurveyed it was estimated that over half — 227.50 acres — was swampland, and of the 112 acres of omitted land lying between the 1859 and 1938 meander lines in Section 7, it is stipulated that 43½ acres are swampland.

Chain of Title. Lots 1, 2, 3, and 4 of Section 7 were selected by Wisconsin along with other parcels under the Swamp Land Act of 1850, Title 43 U.S. C. § 981 et seq., and accordingly conveyed to the state by the federal government. In 1886, Wisconsin deeded Lot 1 to Tom Wall, and through mesne conveyances the title to Lot 1 today vests in Jean Otto and Donald E. Koten. In 1898, Lots 2, 3, and 4 were deeded by the state to William J. Neu and John Dohm. Title to Lots 2 and 3 now vest in Jean Otto and Donald E. Koten. In 1924, Lot 4, then owned by W. E. Wiedner, was subdivided and lakefront lots were sold. Title to these lots now vests in Kurt J. Reif, Ernest Bradford, and Florence Bradford. The title to the remainder of Lot 4 through mesne conveyance now vests in Harold Wesley Zager and Carol Jean Zager.

In 1933 certain portions of Northern Wisconsin became the Nicolet National Forest, and in conjunction with this the 1938 survey was undertaken. That survey, as has been noted, discovered that due to erroneous meandering in 1859, 112.11 acres of land in Section 7 were omitted in the original government plat. This omitted land was divided into Lots 5, 6, 7, 8, and 9 and claimed by the Government. In that over half of Lot 5 was swamp, title to that lot was reconveyed to Wisconsin under the Swamp Land Act. Kurt J. Reif obtained a patent to Lot 7 under the Color of Title Act, Title 43 U.S.C. § 1068. Ernest Bradford and Florence Bradford obtained a similar patent to Lot 8.

The United States now claims Lots 6 and 9 of Section 7 as public land not disposed of through any conveyance. The defendants claim that title to Lots 6 and 7 vested in the State of Wisconsin in the nineteenth century when Lots 1, 2, 3, and 4 were originally given to...