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"'Bk1mvERi J. This cage was'suhmitted to m,e last winter on demurrer
On of it seemed to m.e the was well takep, and I an opInIon sustaining.it. An application for a reQear\ng:was filed, and the case is before me now on such.application. Fot .thedacts of the case, I refer to the former opinion. The first question is whether the doctrine of accretion applies. In opinion" I lIrssumed that it did; Qut that assumption is challenged by for defendant. While the allegation in the bill is of an .imperceptible incJ;ease, one the characteristics and tests of accretions, yet counsw urge that I am bound ,to take judicial notioe Of theoharacterof the the soil throlighwhich it flows, and ofthe rapid changes in the banks which ate constantly going \:>D, aq\\ also that the exteQ,t of the total increase, as disclosed by the biij., SO great as t() idea of that necessary imperceptible in(:rease. I cannot assent to this-.While it is true the increase is great, many acres hR.v'ingbeen added, yet the time during which this increase wRs'made was nearly 20 years, and, obviously, during that time an inmight be going ()n,impeN:eptible from day to day and from week to week, which during the lapse of these. many years would result in the addition of all the land; Hence, notwithstanding what is known Qf the character of the river, and the soil through which it flows, no conclusions Howing therefrom can overthrow the plain averments of the bill. . Passing now to the que$tion which I ruled in favor of the defendant, 1 am constrained to believe that I erred therein. It was held that a deed to lot 4 conveyed lot 4 only, as it existed at the time of the survey, and that remained the property of the prior owner, unless expressly named in the deed. The ruling was based principally vpon the case of Janes v. John.8tont 18 How. 150, and singularly it is that casewqich, after and re-examination; leads me to change my opinion. Section 2396 of the Revised Statutes provides how the boundaries and contents of several. sections, half sections,and quarter sections.of the public lanlis may be ascertained: . "Sec. 2396. "The boundaries·and contenlillof the several sections, half sec· tions, and quartf>T sections of Jhepublic lands shall be ascertained in conformity with the fol1pwingprinciples:First. All the corners mi\rked in the surveys returned by thesurv'eyor general shall be established as the proper Corners of sectlions, or subdivisiOns of sections, which they were intended to designate; and the corners of half and quarter sections hot marked on the surveys shaUbe placed 8S nearly as possible eqUidistant. from those two corpel's ;Which stapd on. the samell:ne· . Second.T:he boundary lines actually run marked in the. surveys returned by the sl!rveyor general shall be established ssthe proper boupdsry lines of tll'e sections or su,bdivisions for which they were intended, and the length ofsllch lines, as returned, shall be held and considered '. as' the true length thereof. And the boundary lines which bavellotbeen:actually run and marked shall be llscet'tained by running Btraight
EAST OMAHA 'LAND' CO. ".' JEFFRIES.
lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed the boundary lines shall be ascertained by running frQm the established corners due north and south or east and west lines, as the case may be, to the water-course, Indian boundary line, or other external boundary of such fractional township. Third. Each section or SUbdivision of section, the contents whereof have been returned by the surveyor general, shall be held and considered as containing the exact return; and the half sections and quarter sections, quantity expressed in the contents Whereof shall not have been thus returned, shall be held and considered as containing the one-half or the one-fourth part. respectively, of ',' the returned contents ofthe section of which they may make a part." Obviously, then, in surveying land bordering upon a river the opposite corners of the quarter sections are fixed, and the side lines are extended from these corners, parallel with each other, until they meet'the water-course; 'and that water-course, and not any line that is run along it, becomes the boundary. This was settled by the case of Railway (]a. v. Schurmeir, 7 Wall.,272. Now in the case in 18 How., 8'1,Lpra, the conrt held that land ,outside of fixed lines, bonndaries, of a tract, could not be appurtenant to it, quoting Lord Coke to the, effect that a thing corporeal canoot properly be appurtenant to a thing corporeal. The lots in that case, as shown by the plat, were bounded on the north by North Water street, and were included within lines dropped from fixed corners on that street, at right angles with the same, and extended until they intersected the lake sbore. Now, it was with reference to accretions formed at these side lines that tbe court used the language referred to. The said lines, being definite, and fixed, run at right angles to North Wa.terstreet, were and continued to be the boqndaries of thalotsnamed, no matter what accretions formed outside, tbose lines. Andin further illustration of this was the language used which 1 quoted in the former opinion. But, while this was laid down as the rule for accretions formed outside of the fixed side lines, a different rule was stated in refElrenCe, to land formed by accretions at the end of the lot, where the water-front was the boundary. ' It affirmed that where the water-line was the bound. where that, line ,might be. ary' itrelbained· the'boundary, no Thus this language is used: "Now, in order to determine what land was conveyed to the plaintiff by his deed of 22d October, 1885, all that was necessary was to locate the lot upon the ground in conformity to the description at that date. The calls in tIle deed, having reference to the plat, location. There was the fixed line north. on the ground ; the lake, 'a natural object, south; and ,t\le inclosed between ,two lines extending at right angles from the corners on Water street to the lake. If the call for the southern boundary, instead of being a lake, whi$ is a, shifting line, peripanent object, such as a street or wall,thereeonld not be two opinions as 'to the location. And yet the water-line.' though it may graduallY;' and imperceptibly change, is just as fixed a boundary, in the eye of the law, as the Jprmer.) Ilpea}i not now of 8 udden and ;considl'lrable changes, which '" are governed by different principles." And again:
FEDEIU,L REPOltTER t . vol.
. ("Bntthe true answer to the position assumed, and which govemed the trial below ·. is that the water boundary on the lake is;to be deemed the true soutbern boundary of the lot at the date of the conveyance; as much so as North Water street WIIS its northern boundary. And the plaintiff is carried by,llis deed to it, not because of the alluvial dep()sit, if any, between the wa· ter-Hlla at the time of the,sun'ey and plat and the line at the date of the deed one of the calls gi ven in haVing passed as appurtenant to the lot" but the deed'requires that the side lines should be thus extended."
,. Iuother the supreme court seems have laid down this proposition, that where a water-line is the boundary of a named lot that line it shift$; and a deed describing reu1ains th£l ,boundary, no matter the lot by number or name conveys the land up to that shilting line t exactly 'it does up to the fixed side line. Supporting this doctrine are the cases of Lamb v.Rickets, 11 Ohio, 311; Giraud's Lessoov. Hughes, 1 Gill & J,.249j Kraut v. Crawford, 18 Iowa t 549j Glover v. Shields, 32 Barb. 374. And, independent of authority, any other rule would be attended with great, if not insurmountable, pra!Jtical difficulties. Supposing a chain of title to this very lot, (lot 4) in which, during a sucCession of years, there appears every two or three weeks a conveyance. The bdundaryon the river is gradually extending, but extending so slowly· that during the time of possession of any grantor the increase would be imperceptible. How, then, can the portion thus reserved be distinguished from the portion conveyed? It is true that between the time of possession of the patentee and the last grantee the change becomes evideRt; but is there any reason why all this increase should belong to the pMentee, arid not be distributed among the various holders in the chain of title? And how can it be distributed? This practical difficulty in the application of the rule announced in the former opinion has led to acarefull'e-examination of the question'in the light of the authorities,tindespecilllly of the case in 18 How., and I am compelled to hold that there was error in the former opinion. The true rule is that, so long as the doctrine of accretiOll applies, the water-line, if named as the boundaty, continues the boundary, no matter how much it may shift, and' thetdeed of the lot carries all to such line., The petition for a rehearingInnst be sustained, and the demurrer to the bill will be overruled.
T. & K.W. Ry. Co.l
, ' (Circuit Court, N',D. Florida. Aprl118,1889.)
A bill seeking injunction against extortionate charges must allege ·that complab1ant has nO other means of carrying on his busines8 lilian those wherein he is 80 overcharged·. A bill allegtng disorimination in who are charged le.s than complainant.·
. . . .
must aver that there are some partie. ,
·Reported by Peter J. Hamilton, Esq., of tbe Mobile bar.