HAIl,DIN V. JORDAN.
the said several suits are subject to an easement in consequence of the dedication of public streets made by Col. John Stevens in the Loss map of 1804. (9) That the several defendants in the several suits should adjudged not guilty. Soil 1111der naVigable livers and arms of the sea, inclUding the shore to highwater mark, belonged at common law, to the king. in trust for his subjects, and could not be granted to an individual. See Lansing v. Smith, 4 Wend. (N. Y.) 9, (21 Amer. Dec. 89;) 4 441; Chapman v. Kimball, 9 Conn. 38, (21. Amer. Dec. 707;) and Arnold v. Mundy, 10 Amer. Dec. 356, to which last-cited case will be found a very complete and full note discussing the whole sUbject of the ownership in land adjoining navigable rivers, etc. But, as between the owner of adjacent fast land and an intruder, the right to land between high and low water mark is in the former. See Ball v. Slack, 2 Whart. 508, following Blundel v. Cotterell, 5 Barn. & Ald. 268.· Soo, J.lso, on general subject, Carson v. Blazer,4 Amer. Dec. 463; Storer v. Freeman, Id.153, and note; and par. ticularly the notes to Ball v. Slack, supra, as reported in 30 Amer. Dec. 278. As to the right of a city to extend its streets to the water front, see Hoboken Land ere Improvement Co. v. Hoboken, reported in 7 Vroom, (36 N. J. 540,) in which the court held that an act of the legislature incorporating a land and improvement company and authorizing it to fill up. occupy, possess, and enjoy all land covered with 'water fronting and adjoining lands that might be ownedby the corporation. and to construct thereon wharves, piers, and the like for !:lhipping a,nd commercial purposes, will not extinguish the public right of access to the navigable waters by a street on land purchased by the, company, which. by the dedication, terminated at the high-water line as it· was when the dedication was made, S. E. HALL.
(Oircnit Oourt, N. D.lllinois, June 4, 1883.)
EJECTMENT-PATENTS FOR LANDS UPON NAVIGABLE WATERS.
Patents, by the .generalgovernment, of public lands bordering on na"igable lakes are not limited by the meander lines. The purchaser of lands from the United States, wheb. the plats and field-notes show that it is bounded on one side by a naVigable lake, takes to the low-water mark of such iake,'
2. SAME-f"AND BETWEEN HIGH AND LoWWATElt LINE.
The cummissioners of the general land-office are notjustlfied in surveying land which lies between high and low water mark upon the margin of anavigable lake, and allowing the same to be entered as unsurveyed and unsold lands; and a patent issued to a purchaser for such land is void,as against the holder of the original title bounded upon the water-line. But where, by the proof, it appears that at the time of the original survey there was a wide belt of substantiallj' dry land running through the entire tract surveyed, and lying
beyond the low-water line of such lake,and separating such lake from an. other body of water, held, that as to such land the government had a right to survey and issue patents which would vest a good title thereto.
Barton d: Chamberl(tin, for plaintiff. J. I. Bennett and Edsall d: Hawley, for defendant.
BLODGETT, J. This is an action of ejectment by which plaintiff seeks to recover from the defendant the fractional S. E. ! of section 19, the fractional N. E. t of section 30, and the E. fraction of the S. E. t of section 30, all in township 37 N., range 15 E. of the third P. M., situate in the county of Cook and state of Illinois, together with the accretions and relictions forming a part thereof. The proof shows that on the twentieth day of December, 1841, a patent was duly issued from the general land-office of the United States, conveying in fee to John Holbrook the parcels of land in question, "according to the official plat of the survey of said land returned to the general land-office by the surveyor general." From copies of the original plat and field-no,tes in evidence in this case, it appears that the east side of the two first-named parcels of land in question, and the west side of the last-named parcel, abutted upon a body of water designated upon the plat a.s a "navigable lake," and that meander lines were run along what purported to be this water boundary, and the plaIntiff's proof shows that she is now seized by a series of mesne conveyances of this Holbrook title. In 1874:, by an order of the commissioner of the general land-office, a survey was made of this so-called navigable lake by extending the original survey lines into and across the same, and what purported by said original plat to be the bed of this navigable lake was, by this last-mentioned survey, cut up into the usual subdivisions of government surveJs, and patents were issued therefor to the purchasers, whose titles under said patent have, by mesne conveyances, become vested in the defendant. The proof shows that the land in question is but a short distance from the southern rim or shore of Lake Michigan, and east of the Calumet river; that the surface of even the highest portions is but a few feet above the water of Lake Michigan and the river; that for some causes, not explained by the proof, the height of the water of Lake Michigan varies or fluctuates about four or five feet,-that is, the extreme high-water mark is about four feet above the extreme low-water mark,-this fluctuation not occuring at stated intervals like a tide, but several years sometimes elapses between those extremes of high and low water; that there is no appreciable difference be-
HARDIN V. JORDAN.
tween the height or 'the water in the Calumet and that of Lake Michigan, and that the waters of the river rise and fall with those of the lake; LOd that the water of this so-called navigable lake being connected ,vith Lake Michigan, and Calumet and Wolf rivers, is affected by this dse and fall of Lake Michigan. It also appears that the height of water in this navigable lake is also affected, to some extent, bJ the spring and fall freshets and summer droughts; that in times of high water in Lake Michigan, and in the spring and fall freshets, the water-line of this navigable lake, indicated on the plat, is at or near the meander lines of the original survey, so that the meander lines indicate, with substantial certainty, the high-water line, while in times of low water the water-line recedes from the meander lines so as to leave a wide margin of grassy meadow land between the meander line and the low-water line. There is, therefore, between this meander line and the low-water line a belt of grassy meadow land from 40 to 80 rods wide, which, in an ordinarily dry season, can be used for hay, meadow, or pasturage. The center line of section 19, and the center line of section 30, if produced eastward from this meander line, will strike into the body of permanent water, while the south line of section 30, if produced west from the meander line of the east fraction of the S. E. fractional quarter of l section 30, will strike the body of permanent water. I say permanent water, because the proof shows that the bottom or lowest part of the bed of this lake is from two to three feet below the surface of Lake Michigan when at its lowest point. The proof in this case satisfies me that there has been no marked change in the character of this land, in the height to which the water rises and falls, since the original government survey in 1835. The constrnction of the harbor at the mouth of the Calumet river may have slightly modified the effect which the rise and fall of the water in Lake Michigan has upon the water in this meandered lake; but Lake Michigan and the Calumet are so close to and connected with this meallderecllake that the variation in the height of the water in Lake Michigan must affect the height of this adjacent meandered pond or lake. This body of water, called on the original plat "Navigable Lake," in fact is, and at the time of the first survey undoubtedly was, divided by a low ridge running nearly north and south, into two lakes or ponds, such ridge being nearly in the same line and directiou as would be shown by the east line of sections 19 and 30, if produced from the north meander line of said lake; the west,'u of these two lakes having acquired the local name or designation
of Hyde lake, ahd the eastern one of these lakes-that is, the one lying east of the ridge that I have mentioned-being locally known as Wolf lake. The north half of this ridge was, undoubtedly, at the time of the original survey, as appears from the proof, covered with a. growth of trees sufficiently large to be used for timber purposes, and thereby showing such ridge to have been substantially dry land to the extent upon which the timber stood on it for many years prior to the time of such survey, while the central portion of such ridge ilJ lower, and is covered mainly with, coarse slough grass. Wolf lake, as it is called, has its natural and ordinary outlet into Lake Michigan. through what is known as Wolf river, but this outlet is liable to be closed by the washing up of sand from. Lake Michigan, and when so closed it is probable that the waters of Wolf lake may have risen high enough to cover this ridge, so as to make the two lakes temporarily one sheet or body of water. There is a natural channel leading from Hyde lake into the Calumet river. and by this channel the water in Hyde lake promptly responds to the rise and fall of the water in the Calumet and Lake Michigan ; but there was no natural channel through this ridge between Hyde and Wolf lakes, and the two bodies of water were only blended into one when the water from any cause was high enough to overflow the lowest part of this ridge. In times of very low water the .water of Hyde lake recedes so as to leave a wide margin of grassy meadow land of this. ridge and the east low-water line of Hyde lake, which can be used for pasturage or meadow land. Upon the belt of land alternately dry or covered with water. which lies between the original meander lines of the fractional S. E. t of section 19, and the fractional N. E. t of section 80, and the east fraction of the S. E. t of section 80, and the lower water-line of Hyde lake. defendant has entered by his tenants, and he also claims title thereto under such of his patents of 1882 as purport to cover this land. Upon the trial of this cause I could get no very definite statement from plaintiff's attorneys as to what they deemed the extent of her claim; but I understood them as insisting that, inasmuch as the plat of the original survey showed each of these tracts to be bounded on one side by this navigable lake, the grant under the Holbrook patent gives plaintiff title to the entire area covered by the lake; at least, their argument proceeds on that assumption. I think, however, that the natural physical facts must control, even against this plat, by which, it may be said, Holbrook purchased; that is to say, there is and was, at the time of the old survey, two lakes instead of one. There was
a ridge,substantially dry, separating them, and this ridge was never surveyed. The government had the right,in 1874, to survey this dry ridge which had never been surveyed, and put it in market and sell it, and the purchasers of this ridge would have the same right to be bounded by the water on the west, tha.t Hoibrook, and those deducing title from him, has to be bounded by the line of permanent water on the west side of the lake. I do not think there is any land involved in this controversy that can be called' or designated as accretions or relictions belonging to the fractions covered by the Holbrook patent; that is, none of this belt of low grassy land lying between the meander lines and the low-water lines of Hyde lake has been deposited or made there since the original survey, so as to be said to be an accretion, nor has the water permanently receded from any part of land, so a,s to give this belt of land the full character of a reliction, or land from which the water has receded and left it permanently dry. I have no doubt, from the proof in this case, that when this 'land was surveyed in 1835, as now, the margins between these meander lines and the low-water lines were, at times, covered with water, so that this belt formed part of Hyde lake at high water, and that at times it would be dry; the fact whether this belt or margin was dry land, or part of the lake, depending upon the height of the water in Hyde lake. Inasmuch, therefore, as Holbrook's land was represented on the government plats as bounded by this lake, I have no doubt that the owners of his title have the right to this margin between high and low water mark. Having given Holbrook, and those daiming through him, the right to this water boundary, the government could not, by a subsequent survey and sale, defeat the title which Holbrook had acquired. This case is essentially, in all its features, like the case of Forsyth v. Smale, decided by the learned circuit judge of this court, and reported in 7 Biss. 201, and I feel fully justified by my own convictions in following in this case the conch}sions of the circuit judge in that. I do not deem it necessary to decide or discuss, for the purposes of this case, who owns the fee of the body of this lake within the area of permanent water; it may rest in the state of Illinois by virtue of its attributes of sovereignty, or the property right may rest . in the United States. What I do intend to decide is that the plaintiff, claiming under the Holbrook patent, has the right to go to the permanent water-line; that the meaader lines run upon what is represented on the plat as the margin. of this navigable lake not boundaries of these fractional tracts, but were run only as a meanf!
of ascertaining the quantity of land in the fraction, and do not, therefore, limit the Holbrook grant. I therefore find that the plaintiff, at the time when, etc., was seized in fee of the land between the meander lines east of the S. E. fractional t of section 19, and the N. E. fractional t of section 30, and the meander lines on the west side of the east fraction of the S. E. t of section 30 and the waters of Hyde lake, and that the defendant is guilty of having entered upon the same and ejected the plaintiff therefrom. The defendant is, therefore, found guilty to the extent named·
. In Forsyth v. Smale, cited above, the court follows the principles decided by the supreme court in the case of Ra'il'l'oad Co. v. Schurmeier, 7 Wall. 272. In that case there was a tract of land surveyed on the Mississippi river, a meander line was run, outside of which was the tract of land in cOlltroversy, which tract was claimed by the railway company by virtne of a grant from the government to the state of Minnesota. but which was also claimed by the party who had entered the land hounded by the river. * * '" The question was whether the patent ,included the land outside of the meander line, and which was sometimes covered by water and sometimes bare. The supreme court held that the patentee had the better title to the land because covered by his patent; that the meander line was run for the purpose of ascertaining the quantity of land, the river still remaining the boundary thereof. In this case the supreme court laid down the following principles: " Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity' of land in the fraction subject to sale, and which is to be pair! for by the purchaser." "In preparing the official plat from the field-notes the meander line is represented as the Qorder line of the stream, but the water-course and not the meander line is the boundary." "Proprietors bordering on streams not navigable, unless restricted by the terms, of the grant, hold to the center of the stream; * * * but upon navigable r,;vers. the better opinion is that the proprietor nmler title from the United states holds only to the stream." "Rivers were not regarded as navigable in the common-law sense, l111less the waters were affected by the ebb and flow of the tide; bnt it is qUite dear that congress did not employ the words 'navigable' and' not navigahle' in that sense, as usually understood in legal decisions. On the contrary, it is olwiolls that the words were employed without respect to the ebb and flow of the tide, as they were applied to territory situated far above tide-waters, and in which there were no salt-water streams." See St. Paul, S. & 1'. F. R. Co. v. First Div" etc., 26 Minn. 31, [S. C.1 N. W. REP. 580.1 and Hoboken v. Penns!j[l)ania :R. Co., ante, 816, and notes. S. E. HALL.
IRON BlLVEB lUNING CO.
IRON SILVER MINING CO. V.
SULLIVAN and others.
(Circuit Court, D. Colorado. June 22, 1883.)
LODE OR PLACER MUiE-REv. ST. §
2333. The" vein or lode" of mineral referred to in section 2333 of the Revised Btatutes as exempt from a grant or patent of premises in which such vein or lode may be embraced, means a vein or lode that has been discovered, developed, or located, and that has definite metes and bounds.
At Law. C. G. Symes, for plaintiff.
Thomas, Patterson, Belford et Reed, for defendant. J., (orally.) This case is before the court upon demurrer to portions of the answer. It is an action of ejectment, in which
the plaintiff proceeds upon a government patent. The answer admits the validity of the patent, and that the plaintiff the owner of whatever title is conveyed by the patent, but justifies the possession in defendants upon the ground that they are developing a certain vein or lode of mineral found within the limits of the property described in the patent. The patent is what is known as a patent for a placer mine, or a placer patent. The court cannot, in an action of this sort, as we aU very well understand, go into any question as to whether the officers of the land department were properly advised as to the facts, nor make any inquiry into any question of fraud. The only tribunal that has authority to investigate questions of that sort is a court of chancery, when its powers are invoked· by proceedings, instituted on behalf of the United States, for the purpose of setting aside the patent. All that we can inquire into, in a case of this character, is the question, what is conveyed by the patent the statute by virtue of which it was issued. The answer in this case sets forth that the portion of the premises occnpied by these defendants constituted a vein or lode which was known and claimed to exist in said premises at the time of the application for the patent, and at the time the patent was issued, and the question here is whether, upon the averments of 'this answer, the premises in controversy, constituting a lode or vein of mineral, must be held, as matter of law, to have been excepted or reserved from the granting clause of the patent; and this question is to be determined . upon a consideration of section 2333 of the Revised Statutes of the United States. It is well enough, however, to state precisely what the answer avers. I have, in fact, already done so. It avers that this