Niles v. Cedar Point Club, 85 F. 45 (6th Cir. 1898)

The complainant’s title depends upon patents from the United States to H. M. Hanna and Phillip La Corse, issued in 1882, and mesne conveyances to comp. 46plainant. -Gertrude Jane Niles, the appellant, who was defendant below, denied the title of complainant, and claimed the same lands under 11 i>atents for fractional sections issued to Margaret Bailey in 1834, and under mesne conveyances to the said Gertrude J. Niles. Upon the pleadings and evidence there was a decree for the complainant, and a perpetual injunction awarded. The correctness of that decree depends upon the true boundary of the patents to Margaret Bailey. Those patents were for fractional parts of sections, and each was meandered on the southwestern margin of a marsh, having an area of some 4,900 acres, which lies between the meandered line of the Margaret Bailey patents and the open water of Lake Erie. If that meandered line, following the margin of the swamp, was intended as a boundary line, the decree must be affirmed, otherwise it must be reversed. The further facts necessary to be stated appear in a stipulation upon which the case was heard below, and are these:

(6) On the 13th of July, 1874, the general land office issued a circular letter concerning the circumstances under which the department would cause surveys to be made of lands theretofore unsurveyed and platted because of the presence of water. Among other things stated in that circular letter, it was said: “rl’he p. 48beds of lakes (not navigable) sloughs, and ponds over which the lines of the public surveys were not extended at the date of the original survey, but which from the presence of water at the date of such survey were meandered, are held to be the property of the United States; and whenever, by evaporation or the operation of any other cause, natural or artificial, the waters of such lake, slough, or pond have so permanently receded or dried up as to leave within the unsurveyed area dryland, fit in ordinary seasons for agricultural purposes, such dry land is subject to survey and sale under the general laws regulating the disposal of the public domain.”

“(17) The general character, description, and condition of the said'land surveyed by said Marston was by him correctly set forth, under the title ‘General Uescription,’ in the field notes of the. said survey so as aforesaid by him certified to the commissioner of the general land office. That concerning the portion of said survey in township 9 S., range 9 E., reciting, to wit: ‘The surface of that part of this fractional township comprised in this survey is covered with a deep marsh of grass, canes, or reeds, wild rice, etc. Many parts of it, particularly in the south and west part, are mown for a kind of coarse hay. Other parts are filled with bogs and pond holes that do not dry in summer. It receives the natural drainage from the woods on the south and west, which, without any well-defined channel, finds its way across the marsh to the lake. Again, in heavy gales of wind, it is subject to inundations from the lake, which, upon the subsidence of the gale, or change of direction in the wind, slowly finds its way out again into the lake. It is bounded along the lake by a sand beach averaging 1 chain in width and 3 feet in height.’ That concerning the portion'of said survey in township 9 S., range 10 E., reciting, to wit: ‘The surface of this fractional township is .covered with a deep marsh of- grass, canes, or reeds, wild rice, etc. Much of the South part can be mown for marsh hay, being in a measure drained by a canal that -has be.en- constructed in the township south. Other parts are filled with bogs-and pond holes that do not dry in summer. It receives the drainage from Wood on the south and west, which spreads over the entire surface and, without any positive channel, finds its way to the lake. Again the township is p. 49subject to Inundations from the lake, during heavy gales of wind, which, upon the termination of the gale, or a change in the direction of the wind, slowly finds its way back into the lake. • This fractional township is hounded on the northeast by Lake Erie. Between the lake and the marsh proper is a sand beach, averaging 3 feet high and 1 chain in width, generally covered with hushes, and small trees of oak, poplar, willow and cottonwood.’ That concerning the portion of said survey in township 10 S., range 10 E., reciting, to wit: ‘The description for this township must necessarily be similar to that of the two preceding townships. The surface of that part of the township comprised in this survey is one large, swampy marsh, land generally very wet and boggy. Its surface is covered with grass canes (or joint grass), wild rice, and such like marsh productions, reaching to a height of 10 or more feet. Some parts, especially on sections 10 and 11, can be pastured, but the larger portion is filled with hogs and pond holes, connected by narrow and tortuous channels. It receives the drainage from the woods on the south and west, and is subject to inundations from the lake. On the prevalence of strong S. W. winds, this water flows from the marsh into the lake, and, upon the occurrence of N. É. winds, the lake floods the marsh. The principal outlets and inlets are Crane croak and Ward’s canal. This canal is an improvement made by O. B. Ward, of Detroit, Michigan, on Sec. 4, and running across Sec. 5 for the purpose of getting vessels and ship timber from his ship yard on See. 5. It is built without locks, and is really only a great ditch. Waterway 50 feet. Depth 7 feet. The buildings (or sheds) at the fishing stations 4 and 11 are the only other improvements.’ A comparison of the survey made by Ambrose Rice in 1834 and 1835 with that made by John B. Mansion In 1881 indicates that Sandy and Crane Islands washed somewhat shoreward during the period intervening between the making of said respective surreys.

By the provisions for the survey of public lands now found in sections 2395 and 2396, Rev. St., it is required that such lands shall be surveyed into townships six miles square, and each in turn subdivided into 36 sections of a mile square, except where the line of an Indian reservation, or of tracts of land heretofore surveyed or patented, or the course of navigable rivers, may render this impracticable; and in that case this rule must be departed from no further than such particular circumstances require. The patents to Margaret Bailey are for fractional sections. The boundary lines are not set out in tbe patents, but reference is made to tbe official plat of the survey of said lands for identification of the land granted, thereby adopting tbe plat as a part of the instrument. Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. Ct. 808, 838. When we refer to the plat and field notes, we find that all the lines of each fractional section are straight, except the line bordering the swamp or marsh, laid down upon one plat as “a flag marsh,” and upon another as “impassable marsh and water.” The straight. p. 50lines of the sections are not continued into or across this marsh, but stop at the margin thereof. Beyond this marsh, and adjoining the open waters of Lake Erie, there was a long, low, and narrow sandy ridge, broken at points by shallow water channels. These small areas of dry land were separately conveyed and platted as additional fractional sections. Along the southwestern border or margin of this marsh, the plat shows that a line was meandered, and the question is, whether this line meandered along the water line of this marsh is the boundary line of,the fractional sections bordered on said marsh. In view of the form of title granted to Margaret Bailey, we are called upon to inquire and determine the effect of that title in reference to this flag marsh, upon which her fractional sections meander. Thé long and undisputable practice of the government has been to measure the price of public lands, when patented, by the quantity of upland granted, and to require no payment for lands covered by the waters of streams or lakes. For the purpose of ascertaining the quantity of upland to be paid for, a line meandering the margin of such waters is run, and, where this is the purpose of running such a meandering line, it is not regarded as in any sense a boundary, but as only pointing out the sinuosities of the bank, for the purpose of arriving at the area of land to be paid for. Railroad Co. v. Schurmeir, 7 Wall. 272; Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. Ct. 808, 838; Horne v. Smith, 159 U. S. 40-43, 15 Sup. Ct. 988.

It has been long settled that government grants for lands bordering upon navigable waters extend only to high-water mark. The title to the shore, and to the lands under such water, is in the state within which such waters are situated, as an incident of the sovereignty of the state, and is held by the state in trust for the public purposes of navigation. The United States has never had title to submerged lands under navigable waters, and its grants could not, therefore, be held as conveying them to their patentees. Pollard v. Hagan, 3 How. 212; McCready v. Virginia, 94 U. S. 394; Webber v. Commissioners, 18 Wall. 57; Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. Ct. 808, 838; Scranton v. Wheeler, 16 U. S. App. 152, 6 C. C. A. 585, and 57 Fed. 803. It would therefore follow that, if this “flag marsh,” shown on the plats of Ambrose Rice, was then a part of Lake Erie proper, the submerged lands would not be subject to grant by the United States, and that the. title of the Cedar Point Club would fail, and this without p. 51regard to the goodness or badness of the title claimed under the doctrine of reliction by the appellant. But that marsh, under the stipulation as to the facts, cannot be regarded as a part of Lake; Erie. The-waters of that lake did not permanently submerge the lands described as “flag marsh,” or “impassable marsh and water.” In times of heavy gales the marsh was subject to temporary inundation, but otherwise the wa ter, which stood or flowed over or through it, seems to have been the mere drainage from the higher lands adjoining, which found its way over these low lands to the lake. At the time of Bice's survey there was an unusual amount of water standing or flowing over the disputed land, and this may account for his failure to survey and plat it When Marsion made iris survey, in 1881, much of the marsh was dry enough for pasture purposes, and much was capable1 of yielding harvests of coarse hay, and all, or nearly all, was covered with grass, wild rice, and other products of such swampy land. Ata still later period it is shown that an even more favorable condition for pastoral purposes existed, due to unusual droughts occurring in 1893, 1891, and 1895. While, under the stipulation as to the facts, we must regard the condition of the marsh at the time of Rice’s survey as exceptional, we have no such liberty in regard to its condition when Mars ton made his survey. We can, therefore, find no evidence of any such general and continuous lowering of the level of the water in the lain1 as would, by (he doctrine of reliction, give to a riparian proprietor the laud gained between an old and new shore line.

The case is governed by that of Horne v. Smith, decided in 1894, and reported in 159 U. S. 40, 15 Sup. Ct. 988 et seq. That case involved the true boundary of three patents for fractional sections of public lands in Florida.. The patents adopted the official plat of survey for identification of the lots granted. That plat showed that these lots were fractional sections bordering on Indian river. All the lines of the patents were the usual straight lines, with the exception of a line meandering a water line marked on the plat as “Indian p. 53River.” The facts as to this line, as stated in the opinion of the court, were these: