NILES V. <Jl!lDAltt. POINT CLUB.

45

be taken Judge Cooley sums it up tersely': "The right which the curative or repealing act takes away in such a case is the right of the party to avoid his contract, a naked legal right which it is usually unjust to insist upon, and which no constitutional provision was ever designed to protect." Cooley, Const. Lim. 378. In the case of Gross v. Mortgage Co., above cited, the case last quoted 'was affirmed. In the Gross Case a loan made by a foreign corporation could not be secured by a mortgage in Illinois. The United States Mortgage Company held such a mortgage. After its execution, the law of Illinois was changed, and such mortgages were validated. The court sustained this act. But no vested liens were interfered with, no contract obligation impaired, no rights infringed. A contract lien, binding on the conscience of all parties, was enforced. Inasmuch as to displace the vested lien of the mortgage of the Shenandoah Iron Company of 1881 by the retroactive language of section 2485 of the Code of Virginia would be to impair the obligation of tbat contract, it is void. The decree of the circuit court is affirmed, with costs.

NILES v. CEDAR POINT CLUB. (CircuIt Court of Appeals, SIxth Circuit. No. 541. 1.
PUBLIC LANDS-SURVEy-MEANDER LINE.

February B, 1898.)

In an official survey of public lands, a meander line, run along the margin of marsh lands adjoining the waters of streams 01' lakes, will, if so intended, mark the boundary of lands described in subsequent patents by reference to the survey, and will not be regarded as a mere indication of the quantity of dry uplands paid for. Government grants for lands bordering upon navigable waters extend only to high-water mark, for the title to the shore and to the lands under such wa· tel'S is in the state within which the waters are situated, as an incident of sovereignty.

2.

SAME-GRANTS OF LAND ON NAVIGABT,E WATERS-HIGH-VVATER MARK.

8.

SAME-MARSH LANDS-NAVIGABLE WATERS.

Where marsh land bordering on navigable waters is subject only to temporary inundation in times of heavy gales, but at other times the water standing or flowing over or through it is the mere drainage from higher lands adjoining, it does not constitute a part of the navigable waters.

4.

SAME-MEANDEH LINE.

An ofllcial survey, made In 1834-35, of government lands in Ohio, showed a meander line along marshy land extending to Lake Erie. No part of the marsh was surveyed at all. Patents granted to defendant's predecessor In title designated the boundaries of the land conveyed solely by reference to the officIal plats of the survey, and that was all that was paid for. Held., that the meander line was run as a boundary, and that the patentee and her successors in title were estopped to deny that the line of the marsh was a propel' line for a boundary.

Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Ohio. This bill was filed by the Cedar Point Club, an Ohio corporation, to restrain threatened continuous. trespasses upon a large body of marshy land lying on the shore of Lake Erie and in Lucas county, Ohio.
The complainant's title depends upon patents from the United States toB. M. Hanna and Phlllip La Corse, Issued In 1882, and mesne conveyances to· com-

SIS

FBlDIllRAL RIIlPORTBlR,. . '.,

plalriant GertrUdE!' Jane Nlles, tM appellant, who was defen«Jant below, «Jenled the title of complainant, and claimed the same lands under 11 patents 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 complaJnant, and a perpetual Injunction awarded. The correctness of that decree depends npon the true boundary of the patents to Margaret Balley. 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 ca!';e was heard below. and are thege: (1) In 1834-85, Ambrose Riee. it government surveyor. surveyed and subdivided fractional township 9 S., in range 9 E., and townships 9 and 10 S., in range 10 E., from the }I!chigan meridian, and duly certified his field notes of such survey and subdivision to the then S\lJTeyor general, Robert T. Lytle. These townships are now II). Lucas county, Ohio. In UlRking a survey of these three townships. sections 22. 25. 26, and 27, township 9 Soo range 9 E., and sections 30. 31. and 32. in township 9 S.· range 10 E., and sections 4, 9, 10. and 11, township 10 S.. range 10 E .. were meandered on the southwestern margin of a marsh, described on one plat as "a flag marsh." and on another plat llS "impassable mllrsh or water." On the west of this marsh, Rice at the same time surveyed a narrow strip of sand. separating this marsh from the open waters of Maumee Bay, and on the northeast a like strip, separating it from the open waters of Lake Erie. This strip commenced In section 22, township n, range 9, and ended In section 11, township 10, range 10, and was divided by two openings into the .Ial_e. into what Rice called Cedar. Sanoy, ann Crane Islands. This strip WRS meandered on the one side along the open waters of the bay and lake. Rnd on the other side on this same "flag mRrsh." or "Impassable marsh or water." One of these plats. being that of subdlylsion of township 9 S., range 9 E., is set out on the opposite page. as exIi!biting. In a general way. a portion 'of the meandered line of the fractional seC'tions. the houndaries of whlC'h are here Involved. (2) On tbe 10th of .Jnly. 1844,11 patents wpre issued to Margaret Bailey for these 11 fractional sections aboYe mentioneCl,'-that is. forseetlons 22, 25, 26. and 27, township 9. range fl, and sections 30, 31, 32, to,,'nship 9, range 10. and sections 4. 9. 10, and 11, township 10. range 10,.-extending the entire length of this inatsh,PMh patent spec.ifying the nnmher of acres contained between the section IItlr> and the meandered line as run by Rice. (3) The plats and mAr,glnal field notes also show that the southerly edge of the "flag marsh." "impassable marsh and water." was surveyed, and that the llnes of the fractional sections sontherly of tbe said marsh and water were Identical with the southerly edge of tbe marsh. The eomputed areas of the fractional sections and of their respertlve subdivisions. as sho"'n npon the said plat, conformed to the arE'a included wltbin the sail'1 surveyed lines, Rnd did not, nor any thereof. include :lllY part of either marsb. water, or IslHJlds. The several patents to Marglll'et Bailey are of the same oate. and earh ioentiral In form. except as to d serlptlon. The desrrintlon of the patent for section 11. township 10. range 10 E.. Is bere set out as fairly typical of the form and descrIption of all the rest. It is as follows: "To Ail to Whom These' Presents shall Come-Greeting: "Whereas,Margaret Bailey. of Champalgne eounty. Ohio, has deposited in the general land office of the United States a certificate of the register of the land office at Bueyrus, whereby It appeal'S that full payment has been made by the said Mar'garet Bailey Reeordlng to the provisions of the act of congress of the 24th of April, 1820. entitled 'An act making further provision for the sale of publlc land,' for fractional section eleven (11), in township ten (iO) SlHlth, of the Michigan to saleljlt J3ucyrus, Ohio, base line, of range ten (10), In the, district of land containing twenty (20) acres and. forty-fiYe hundre\1ths of an ac,e. according to the officllil plat of the survey of said lands returned to the general land office by the surveyor general, which said tract has been purchased by the said Mar· garet Ballei)" ': , (4) It appears, from' the official' correspondence of the land office in evidence, that In 1850 the state of Ohio, under the' swamp act of that. year, demanded pat·

NILES" V. CEDAR POINT CLUB.

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ents for 32,438 acres as swamp land. Patents were Issued for all these lands except 6,797 acres, the claim to which was rejected upon the ground that it was not swamp land, "and nearly all sold." Of the amount rejected, the greater part consisted af the lands marked "flag marsh," "impassable marsh and water," on the plats and In the field notes of Ambrose Rice, being the lands now here In controversy. (5) On September 16, 1861. a patent was issued to Chester W. Norton for 34.89 acres, being the land known as "Cedar Point" on the plat of Ambrose Rice, east of Maumee Bay, in township 9 S., range 9 E. of the Michigan meridian. And on the 10th of October, 1876, a patent was issued to Arthur D. Howell for that portion of the sandy ridge shown on the plat of Ambrose Rice as Sandy Island and Crane Island, in section 24, towilship 9, range 9 E., and in sections 19, 29, 30, 32. and 33, in township 9 S., range 10 E .. and In sections 2. 3, 4, and 11, in township 10 S., range 10 E., Michigan meridian. and containing In all 55.55 acres, according to the.official plat and survey of the said lands as returned to the surveyor general by said Ambrose Hice. (6) On the 13th of July. 1874, the general land office issued a circular letter concerning the circumstancesnnder which the department would cause surveys to be made of lands theretofore unsurveyed and piatted because of the presence of water. Among other things stated in that circular letter, It was said: "The

48

85 FEDERAL REPORTER.

surveys were not extended at the date of the original survey, but which from the pl'esenceof 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 dry land, 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." In April and May, 1891, John B. Marston, a civil engineer residing in Lucas countY,under the instructions .from the commissioner of the general land office of dat.e April 2, 1881, surveyed and subdivided into sections the area which was, as aforesaid, In and upon the surveyor general's plat. of Ambrose Rice's survey desil::nated as "flag marsh" and "impassable marsh and wat.er," in said township 9 S., range 9 E., and townships 9 and 10 S., range 10 E .· and on May '28, 1881, duly Certified his field notes of said survey to the then commissioner of the general land office. This survey was so made, and the area surveyed so. subdivided into sections and parts of sections, as to complete and render full, to the extecnt that the area' so then surveyed was In form suitable therefor. the sections which in said illce's survey were rendered fractional by omission and exclusion from said survey of area designated as "flag marsh" and "impassable marsh and water." The boundary line on the westerly side of the area so surveyed by said Marston, from the point 2.75 chains easterly of the section line between sections 21 and 22, in township 9, range 9, extending somewhat east of north to the southerly extremity of the west. part of Cedar Island, is the shore of Maumee Bay; and the boundary line on the southerly and westerly sides of said survey, from the point 2.75 chains east.erly of the said line betwecn sections 21 and 22, extending southerly and easterly to the outlet of Crane creelc, in section 11, township l(l, range 10, is Iden· tical with the boundary line between the surveyed lands and the "flag' marsh" and "impassable marsh and water," as shown upon the said plat of the survey made by Ambrose Rice. The land thus surveyed and subdivided by Marston was subsequently patented to H. M. Hanna and Phlllip La Corse, from whom the appellee holds deeds conve:rlng all the rights of the said patentees thereunder. Concerning the character of the marshy land thus patented to Hanna and La Corse, the facts as stipulated by the parties in Interest are these: "(16) At the time of the making of the survey by Ambrose Rice, the waters of Lake Erie were above their ordinary stage, and there was more than the usual volume of water standing upon the land in controversy herein, and flowing to and upon the same from the large bodies of land, now in Ottawa, Wood, and Lucas counties, respectively, having their drainage to and through the said premises in controversy herein. "(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 Description,' 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 Eo, reciting, to wit: 'The surface of that part of thie fractional township comprised In this survey Is covered with a deep marsh of grass, canes, or reeds, wild rice, etc. Many pal"1:s 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· deflned 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 subsi· dence 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 saud beach averaging 1 chain in width and 3 feet in height.' That concerning the portion oC said survey in township 98., l'3nge 10 E., reciting, to wit: surface of this fractional townshIp Is covered "Ith 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 been constructed in the township south. Other parts are filled with bogs and pond holes that do not dry in SUiDmer. It receives the drainage from wood on the south nnd west, which spreads over the entire surface and. without any positive Channel, finds Its way to the lake. Again the township Is

beds of la):es (not navigable) sloughs, and ponds over which the lines of the public

RILES 'f. CEDAR. POINT CLUB.

49

aubject 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 bounded on the northeast by Lake Erie. Between the lake and the marsh proper Is a sand beach, averaging 8 feet hIgh and 1 chaIn in width, generally covered with bushes, 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, iand generally very wet and boggy. Its surface Is 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 bogs lind 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. E. winds, the lake floods the marsh. The principal outlets and Inlets are Crane creck anil Ward's canal. ThIs canal Is an improvement made by C. 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 Sec. 5. It Is built wIthout locks, and Is really only a great ditch. Waterway 50 feet. Depth 7 feet. The buildings (or sbeds) at the fisblng stations 4 and 11 are the only other Improvements.' A comparison ()f the survey made by Ambrose RIce In 1884 and 1835 with that made by John B. Marston In 1881 indicates that Sandy and Crane Islands wasbed somewhat shoreward durIng the period intervening between the makIng of saId respectIve surveys. "(18) By reason of unusual drouth, whIch, during the years 1898, 1894, and 1895, prevailed quite generally over the regIon of country from whIch Lake Erie and Its tributarIes derive their waters, including that the drainage whereof was to and through the premises in controversy, the major portion of the said premises was dry durIng the summer of 1895, except In case of heavy local raIns, or when the adjacent waters of Lake El'ie were higher than they usually were during that summer."

Henry T. Niles and Frank C. Daugherty, for appellant Potter & Emery, for appellee. Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge. IJURTON, Circuit Judge, after making the foregoing statement of facts, delivered the opinion of the court. 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 the patents, but reference is made to the official plat of the survey of said lands for identification of the land granted, thereby adopting the 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 fractionnl section are straight, except the line bordering the swamp or marsh. laid down upon one plat as Cia flag marsh," and upon another as "impassable marsh and water.'" The straight
85F.-4

50

85' FEDERAL REPORTER; ,

lines of the sections are not continued into or across this -marsh, but stop at' the margin '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 slllilll areas of dry land were separately conveyed and platted as additional fractional sections. Along' the southwestern bot-del' 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 'iew 9f the form of title to Margaret Bailey" we are called upon to inquire and the effect of that title in reference to this flag marsh, upon wl1ich. her fractional sections meander. The long and undisputable practice of the government has been to measure the price of public lands, :when patented, bv the quantity of upland granted, and to require nO payment for laIl-ds covered by the waters ()f 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 ()ut the sinuosities of the bank, for the purpose of arriving at the area ()f land to be paid for. Railroad Co. v. Rchurmeir, 7 Wall. 272; Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. C1. 808, 838; Horne v. Smith, 15t1 U. S. 41}-43, '15-Sup. of ," As we understand it, the contention of the appt'llant is that this meander line, following the southerly water line of the marsh, was not run as a boundary line, and that, if the marsh, under the evidence, was a part of Lake Erie, her boundary is the shore line of the lake proper, and, if that shore line has receded. her boundary has followed the retreating shore, 'giving to her, under the doctrine of reliction, the land thus gained. On the olher hand, her contention is that, if the marsh was not a part of the lake, but was a mere pond, marsh, or other shallow nonnavigable body of water, her boundary should be projected by extension of the side lines of each fractional section into said shallOW pond or lllarsh, so as to complete eachsedion as required by the law requiring the subdivision of each township into 36 sections of 640 acres each. 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. C1. 808, 838; Scranton v. Wheeler, 16 U. S. App. 152, 6 C. C. A. 585, and 57 Fed. 803. It wonld therefore follow that, if this "flag marsh," shown on the plats of Ambrose Rice, was then a part ·of Lake Erie proprr. the submerged lands would not be snbject to grant by the United States, and that the title of the Cedar Point Club would fail, and this without

NILES V. CEDAR POINT CLUB.

51

regard to the goodness or badness of the title claimed under the aoctrine of reliction by the appellant. But that marsh, under the stipula· tion 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 water, 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 Rice'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 Marston made his survey, in 1881, much of the marsh W&S dry enough for pasture purposes, and much was capable of yielding hal'· vests of coarse hay, and all, or nearly all, was covered with grass, wild rice, and other products of such swampy land. At a still later period it is shown that an even more favorable condition for pastoral purposes existed, due to unusual droughts occurring in 1893, 1894, and 1895. While, under the stipulation as to the facts, we must regard the condi· tion of the marsh at the time of Rice's survey as exceptional, we have no such liberty in regard to its condition when Marston made his survey. We can, therefore. find no evidence of any such general and con· tinuous lowering of the level of the water in the lake as would, by the doctrine of reliction, give to a riparian proprietor the land gained between an old and new shore line. The decision of the supreme court of Ohio in James v. Howell, 41 Ohio St. 696, can have no effect as res judicata, because it was not a suit between the parties to this record. That was a controversy between James, a predecessor in title to the appellant, and Howell, the patentee of one of the so-called "sandy islands" shown on Rice's plat. James claimed then, as does his successor in title now, that the boundary of the Margaret Ba'ley patents was the open water of the lake, which would thus inclLll. IIowell's island. Howell's defense seem8 to have been-First, that this marsh was a part of the lake pl'oper, and that his patent was for an island separated from the shore of this lake by this marsh; second, that the meander line run by Rice on the border of this marsh was run as a boundary line, and therefore the grants to her could not, under any circumstances, convey land not within her boundaries. The case was decided for Howell upon both grounds. So far as it was a judgment upon facts, it is of no force or effect upon a different record and between different parties. The conclusion of that court upon the evidence relating to the characte'" of this marsh was thus stated by the court:
"The contributions of such streams, mingled with other water of the lake, fill the straits between Cedar, Sandy. and Crane Islands. and the space piatted as 'impassable water and marsh.' Even at low water in the lake, there is six inches of water in this marsh. Witnesses speak of a chain of ponds. These are merely spots in the marsh where, because of the depth, or for some other reason, vegetation has not been able to find support. The water is under the vegetation that covers the so-called marsh, as well as the so-called ponds. The islands are in fact' surrounded by water, although vegetation of a certain sort grows thickly in mtichof that water. The meandered HUe along the southerly edge of the soca.Iled marsh, was In ;fact along a shore of the :lake. In order to form a statutory

li2

.85 FEpERAL REPOItTER.

boundalj', the nAvigable rIver ne.ed not be actually navigable at every point. Lake Erie, as a whole, Is For that reason, every part of its shore, under the act, might be treated by the surveyor as a legal boundary for fractional townships and sections. In so treating so much of the lake as lay behind these islands, Rice and Lytle did not exceed their authority. According to the evidence put in by James, as well as by Howell, it appears that, even at a low stage of the lake, there Is six inches depth of water in this marsh, and a greater depth in the straits."

But the question as to whether this marsh was a part of Lake Erie, and therefore a proper boundary for public lands bordering thereon, is 3, question of fact, to be determined in this case upon the evidence in the record. There is no evidence in this record that the land in controversy "is land continuously submerged under not less than six inches of water in seasons when the water was lowest," such as was found in the Ohio case. No such state of facts is shown in this record, and by no stretch of imagination could any court, upon this record, conclude that this low, swampy body of land, partly boggy, partly dry, and sometimes subject to temporary inundation, was so continuously under the water of the great lake as to be a part thereof. We therefore reach the conclusion that this marsh was no part of Lake Erie when Rice made his survey in 1833-34, and that, if same was not included within the patents to Margaret Bailey for the fractional sections bordering thereon, it continued to be a part of the public lands, subject to survey and patent. That a water line existed along the course of the meandered line run by Rice cannot, perhaps, be collaterally questioned. But the question is whether that water line was the line an unusual amount of water collected thereof this marsh, then in, or the water line of the lake proper? That the meandered line fol· lowed the sinuosities of the marsh, and not of the lake, is most evi· dent from the facts of this case. The area of the fractional sections is given, and it is stipulated that no part of the area of the marsh or sandy islands was included in the survey under which Margaret Bailey's patents issued. It is also evident that no part of the marsh was surveyed at all. It is thus most manifest that this meandered line was run as a boundary, and not merely for the purpose of ascertaining the quantity of dry land paid for. It would be useless to speculate as to the reason which induced Rice to make the border of this marsh a boundary of the fractional sections bordering thereon. That he did 'so there can be no doubt. Margaret Bailey paid only for the area (If the lands actually included in the fractional sections, and accepted patents in which the meandered line along this marsh was made a boundary. She and her successors in the title are estopped to deny that the line of that marsh was a proper line for a boundary. The patents conveyed only the land which was surveyed. The case is governed by that of Horne v. Smith, decided in 1894, and reported in 159 U. S. 40, 15 Sup. at. 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 excep· tion of a line meandering a water line mar.kedon the plat as "Indian

NILES V.CEDAR POINT CLUB.

5.3

River." The facts as to this line, as stated in the opinion of the court, were these:
"Along the course of this meander line, as shown on the plat, runs, according to the testimony, a bayou or savannah, opening into the Indian river, and west of this bayou, and between it and the main waters of the river, is a body of land, extending a distance of a mile or a mile and a quarter, and amounting to some 600 acres. This is a body of low land, in some places, however, from four to six feet above the level of the river, and covered with a growth of live oak trees, many of them three and four feet in diameter. It was not land formed by accretion since the survey."

The contention was that this meandered line was not run as a boundary, but merely to ascertain the quantity of upland to be paid for, and that the patents granted the lands between that line and Indian river, which was, in fact, more than a mile away. The land lying between this meandered line and Indian river was not in fact surveyed. In the course of its opinion the court said:
"But the question in this case is whether the boundary of these lots is the bayou or the main body of the river. That a water line runs along the course of the meander line cannot, of course, In the face of the plat and survey, be questioned; but that the meander line of the plat is the water line of the bayou, rather than that of the main body of the river, is evident from these facts: In the first place, the area of the lots is given, and, when that area is stated to be 170 acres, it is obvious that no survey was Intended of over 700 acres. In the second place, the meander line, as shown on the plat, is, so far as these lots are concerned, wholly within the east half of sections 23 and 2.6, while the water line of the main body of the river is a mile or a mile and a quarter west thereof, in sections 22 and 27. Again, the distance from the east line of the section to the meander Hne is given, which is less than a quarter of a mile, while the distance from such east line to the main body of the river must be in the neighborhood of a mile and a half. Further, the description In the patent Is of certain lots in sections 23 and 26, and, manifestly, that was not intended to include land ill sections 22 and 27. These considerations are conclusive that the water line, which was surveyed and made the boundary line of the lots, was the water line of the bayou or savannah, and there has been simply an omission to make any survey of the tract west of the bayou, and between it and the main body of the Indian river. It is unnecessary to speculate why it was that it was not surveyed. It may have been a mere oversight, or it may have been because the surveyors thought that the action of the water would soon wash the low land away; but, whatever the reason, the fact is obvious that no survey was made of that body of land, and the boundary line fixed was the water line of the bayou. * * * Althongh it was surveyed, it does not follow that a patent for the surveyed tract adjoining carries with it the land which, perhaps, ought to have been, but which was not in fact, surveyed. The patent conveys only the land which Is surveyed, and, when it is clear from the plat and the surveys that the tract surveyed terminated at a particular body of water, the patent carries no land beyond it."

In conclusion the court said:

"So, in the ease before us, obviously, the surveyors surveyed only to tWs bayou, and called that the river. The plaintiff has no right to challenge the correctness {If their action, or claim that the bayou was not Indian river, or a proper water line upon which to bound the lots."

The conclusion we reach is that the meandered line was the boundary line of the Margaret Bailey patents, and that the marsh was public land, subject to survey and patent, and that appellees obtained the title under the patents to Hanna and La Corse. This conclusion affirms the opinion of Justice Harlan, who heard this case below, and who, in a memorandum opinion, said:

54

85 FEDERAL REPORTER.

"My opinion Is that the plalntltr is entitled to the relIef asked In the bill. 'My conclusion rests upon the general ground that, while a meander line Is ordinarily to be taken as showing only the quantity of land to be paid for by the purchaser, the meander line in this case must be taken as a line of boundary. 1 do not think that there was any intention, by the survey and patents under which the principal defendant claims, to p3SS the title to the marsh land between the 'meander' line and the islands. On the contrary, it must be taken that the intention was not to pass the title to that land. I concur entirely with what was said in .Tames v. Howell. 41 Ohio St. 600. And that case is supported in principle by Horne v. Smith, 159 U. S.40, 15 Sup. Ct. 988."

The decree is in all things affirmed.

CONSOLIDATED FASTENER CO. v. COLUMBIAN BUTTON & FASTENER CO. (Circuit Court, N. D. New York. February 23, 18lJ8.)
EQUITy-MASTER'S HEARINGS-JURISDICTIQN OUTSIDE OF DISTRICT.

A master to whom a cause Is referred has jurisdiction, in his discretion and for the convenience of the parties, to take testimony outside of the disll'ict of his appointmoo.t.

This was a suit in equity by the Consolidated Fastener Company against the Columbian Button & Fastener Company for infringement of a patent. The cause was heard on a motion for instructions to the master, to whom it was referred to take and state an account. W. B. H .. Dowse, for complainant. Wetmore & Jenner, for defendant. COXE, District Judge. The complainant's patent was upheld and a master was appointed to take and state the account. It is alleged,. and not disputed, that all the defendant's books, papers and documents to be examined on the accounting are in the city of New York and that all of the witnesses as well as the counsel for the defendant reside there. Indeed, it would seem that no one connected with the accounting resides in this district save only the master himself. In these circumstances the master, intending to accommodate all parties and prevent the annoyance whi('h might result from the removal of the defendant's books to this district, df'signated New YOI'k City as the place of hearing. It was stated at the argument that this ruling was acquiesced in and the accounting proceeded amicably for some time. The defendant now takes the objection that the master has no jurisdiction beyond the limits of the district of his appointment. The question thus presented for decision is whether a master appointed in the Northern district of New York has power to take testimony in the Southern district of New York. The precise point was decided in favor of the complainant's contention in Refrigerating Co. v. Gillette, 28 Fed. 673. The court went much further than is required in the case at bar and sustained the master's order providing for the taking of testimony afLiverpool and London. The reasoning of the court in White v. Railroad Co., 24 C. C. A. 467, 79 Fed. 133, must it is thought, lead, to, a similar result.