Schlosser v. Hemphill

Waterman, J.

I- une: wifeu a boundary. Lots two and three, which plaintiff admittedly owns, are bounded on the south by the south section line, and they extend almost across said section from east to west. Plaintiff’s claim was once before presented to this court in an action of . a similar nature to this, but against a aifrerent defendant. See Schlosser v. Cruickshank, 96 Iowa, 414. Plaintiff was then successful. But that was before the resurvey and issuance of a patent and the making of conveyance by the county; and, more than this, in the other case Schlosser claimed title only to the actual margin of the alleged lake, while here he claims to the half section line, .which was first run through this section by the resurvey of 1898. It is undisputed that the meander line did not correctly indicate the shore line of the lake as it was originally run. In the former case we found on the evidence then before us that there was a tract of about one hundred acres between said line and the actual shore of the lake. When a body of water is meandered, such lines are not run as boundaries, but merely for the purpose of defining the sinuosities of the shore, and as a means of ascertaining the quantity of land to be paid for by the purchaser. Schlosser v. Cruickshank, supra, and authorities therein cited. In such a case, if the meander line does not coincide with the bank of the lake, but is so run that land lies outside, and betw’een it and the shore, the adjoining owner will usually take title to the actual shore line; and it may doubtless be properly conceded that no tubsequent resurvey by the government, in the absence of *455 fraud or error so gross as to be in the nature of a fraud in the original survey, could affect his title thereto. Mitchell v. Smale, 140 U. S. 406 (11 Sup. Ct. Rep. 819, 840, 35 L. Ed. 442). But, where there is no adjacent body of water proper to be meandered, the rule we have mentioned will not apply. In such a case the meander line will be a boundary line, and one who purchases from the government according thereto cannot claim title beyond it. Grant v. Hemphill, 92 Iowa, 218; Live Stock Co. v. Springer, 22 Sup. Ct. Rep. 563 (46 L. Ed. —.)

a. what bodies be™ea£dered: evidence, We have, then, to determine whether there was a body of water in section 30 proper to be meandered. As to what bodies of water should be meandered, see Lester ^and Law (Ed. 1860) 714. We do not intend setting out the testimony on this point. It is g^g voluminous and very conflicting. From a careful reading of it we reach the conclusion there was no such body of water. That there was swampy and low land in section thirty north of plaintiff’s lots admits of no question, and in wet seasons, doubtless, a large part of it was covered af times with water; but we are equally clear that no permanent body of water of any considerable extent existed there. The lake spoken of in Schlosser v. Cruickshank as being about two miles wide, three miles long, ten to eighteen feet deep, and adjacent to this land, is evidently Lost Island Lake, which lies south of section thirty and no where touches it. The meandered lake which gives rise to this controversy is called Mud Lake, and, as must be manifest from what we have said, lies north of plaintiff’s land. How far, if at all, this mistake affected the conclusion in the Cruickshank Case, we are not able to say; but that it was an error is clear from the fact that neither witnesses nor counsel for plaintiff claim Mud Lake to answer at all to the description so given. The confusion seems to have arisen from the fact that the Cruickshank Case was submitted in connection with another *456 case involving similar questions' (Caldwell v. Jackson, 96 Iowa, 414), but which related to land bordering upon Lost Island Lake, and the arguments were made in the latter case. The case of Grant v. Hemphill, to which we have alluded above, involved Mud Lake, as alleged, on section nineteen, which of course adjoins section thirty on the north; and the evidence in that case, in which it was found no lake existed adjacent to the land of the plaintiff in that action, seems to have been quite similar to what is relied on here in support of Schlosser's Case.

We are confirmed in our conclusion by plaintiff’s present claim. He does not seek to extend his north line to the shore of a lake, but to the half section line, which did not appear on the original plat; for, with the exception of a very small tract in the northwest corner of the section, the lake was shown to cover that whole subdivision outside of plaintiff’s two lots. The half section line certainly does not mark the shore line of any body of water at present or heretofore existing. If we were able to find now, as was done in the former action brought by this i>laintiff, that a tract of land lay north of and between the meander line and .’an existing permanent lake proper to have been meandered, we might, perhaps, reach a conclusion on the facts in harmony with our former opinion; but the evidence before us precludes this. The south shore of the body of water, such as it was, is far south of the half section line according to all the testimony. Beyond this shore or margin, plaintiff’s title could not extend, if that body of water was a permanent lake. Rood v. Wallace, 109 Iowa, 5; Noyes v. Board, 104 Iowa, 174.

The fact that plaintiff claims beyond the shore line, when taken in connection with the testimony going to show that the greater part of such body of water was but temporary in character, is sufficient to convince us that no meander line should ever have been run here. Plaintiff’s present claim, and the facts and arguments in its support. *457 tend to clear the half section in question of any lake, and, indeed, to remove such permanent body of water wholly from the map. We are further inclined to believe that when the meander line deviates so far from the true shore as it does in this case from the bank of the body of water attempted to be bounded according to all the evidence and the concessions of counsel, the error would be so gross as to warrant a resurvey. Cragin v. Powell, 128 U. S. 691 (9 Sup. Ct. Rep. 208, 32 L. Ed. 566); Lumber Co. v. Rust, 168 U. S. 589 (18 Sup. Ct. Rep. 208, 42 L. Ed. 591); Niles v. Cedar Point Club, 175 U. S. 300 (20 Sup. Ct. Rep. 124, 44 L. Ed. 171). While it is true the significant question before us is the condition that existed when the original survey was made, and that attempts to show this must usually involve much uncertainty, because of the great changes that lapse of time and cultivation of surrounding lands have made in the wet lands and inland waters, yet it appears beyond question here that the meander line was not correctly run in the first instance, and we think it is satisfactorily disclosed that no body of water necessary to be meandered then existed where Mud Lake is shown on the plat to be.

3. title to ldvCTsPep”s-: lfSSn^ressCt l8s°' II. Plaintiff rests his claim of title also upon adverse possession. It is said he and his grantors have been in Xios'session of the disputed tract, claiming title thereto, for much more than ten years prior to the beginning of this action; that the swamp land act of 1850 was a grant in prmsenti; and that the statute of limitations will run against a county. The grant of swamp lands which had been surveyed and platted was in jprcesenti, and, it has been said, passed title to the state, and from the state such title passed to the counties by the act of the general assembly of 1853. Smith v. Miller, 105 Iowa, 688; Bailey v. Callanan, 87 Iowa, 107; Emigrant Co. v. Fuller, 83 Iowa, 599. But it was an inchoate title only that passed under the act to the *458 state. The legal title remained in the United States until a patent was issued. Ogden v. Buckley, 116 Iowa, 352; Rogers Locomotive Mach. Works v. American Emigrant Co., 164 U. S. 559 (17 Sup. Ct. Rep. 188, 41 L. Ed. 552); Lumber Co. v. Rust, supra. Furthermore, the swamp land act did not operate to convey any interest in lands unsurveyed at the date of its passage. A survey into legal subdivisions is a necessary prerequisite to the passing of title from the government. Boynton v. Miller, 22 Iowa, 579. So long as title remained in the United States, the statute of- limitations would not run. Durham v. Hussman, 88 Iowa, 29; 1 Am. & Eng. Enc. Law, 875, and cases there collected. This land was not surveyed until the year 1898. Before it was laid out into legal subdivisions, neither state nor county could make a selection or assert any title to it. See, further,' on this point, Land Co. v. Adkins, 38 Iowa, 351; Railway Co. v. Allfree, 64 Iowa, 500.

In our opinion, the plaintiff has no right to any other than the land patented to his grantor, and the decree of the trial court must therefore be reversed.