# Kean v. Calumet Canal Improvement Company/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglass White
United States Supreme Court
190 U.S. 452
Kean v. Calumet Canal Improvement Company
Argued: October 23, 1901. --- Decided: for reargument December 22, 1902
This is a proceeding to quiet title, brought by the Calumet Canal & Improvement Company in a court of the state of Indiana. The company got judgment, which was affirmed by the supreme court of the state (150 Ind. 699, 50 N. E. 85), and the case is brought here by writ of error. The land in question is land bordering on and extending under certain non-navigable water up to the state line, the Illinois side of which was the subject of the decisions in Hardin v. Jordan, 140 U.S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838, and Mitchell v. Smale, 140 U.S. 406, 35 L. ed. 442, 11 Sup. Ct. Rep. 819, 840. But the facts in this case are somewhat different. The Calumet company claims title through mesne conveyances from the state of Indiana. The state of Indiana got its title under the swamp-land act, September 28, 1850, chap. 84 (9 Stat. at L. 520, Rev. Stat. §§ 2479 et seq., U.S.C.omp. Stat. 1901, p. 1586), and patents of the United States, dated 1853, purporting to be in pursuance of that act, and referring to the official plat of survey, which was made in 1834. The patent set forth describes 'the whole of fractional sections' enumerated and bordering on the water, in which sections lies the disputed land. The state afterwards conveyed by the same description. It is not denied that the company got the land above the water line, as shown in the plat referred to, but it is denied that it got more. The water has been receding and drying up, so that the question is important. The defendants set up a later survey in 1875 of the land which was covered by water in 1834, and is covered, to a less extent, still, and patents from the United States in pursuance of the same, for tracts below the original water line. They deny that the state ever owned this land, or, if it did, that it conveyed it, and they allege the later survey to be conclusive.
On general principles of conveyancing, the state would have acquired the land in controversy here by a conveyance from the United States describing the upland according to the survey, because the local law of Indiana, and the common law as understood by this court, are the same, so far as this case is concerned. Stoner v. Rice, 121 Ind. 51, 6 L. R. A. 387, 22 N. E. 968; Hardin v. Jordan, 140 U.S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838. The case is stronger if the land passed under the swamp land act, as has been held by the state court with regard to this and similar patents. Mason v. Calumet Canal & Improv. Co. 150 Ind. 699, 50 N. E. 85; Kean v. Roby, 145 Ind. 221, 42 N. E. 1011; Tolleston Club v. Clough, 146 Ind. 93, 43 N. E. 647; Tolleston Club v. State, 141 Ind. 197, 38 N. E. 214. See Mitchell v. Smale, 140 U.S. 406, 414, 35 L. ed. 442, 445, 11 Sup. Ct. Rep. 819, 840.
The making of a meander line has no certain significance. French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 52, 46 L. ed. 800, 802, 22 Sup. Ct. Rep. 563. It does not necessarily import that the tract on the other side of it is not surveyed, or will not pass by a conveyance of the upland shown by the plat to border on the lake. It is not always a boundary. St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 19 L. ed. 74; Hardin v. Jordan, 140 U.S. 371, 380, 35 L. ed. 428, 432, 11 Sup. Ct. Rep. 808, 838; Mitchell v. Smale, 140 U.S. 406, 414, 35 L. ed. 442, 445, 11 Sup. Ct. Rep. 819, 840; Horne v. Smith, 159 U.S. 40, 43, 40 L. ed. 68, 69, 15 Sup. Ct. Rep. 988; Grand Rapids & I. R. Co. v. Butler, 159 U.S. 87, 93, 40 L. ed. 85, 87, 15 Sup. Ct. Rep. 991. In this case its immediate import was only to indicate the contour of the lake. It would seem, to be sure, that the settled understanding of the Land Department has been that in cases like the present the meander line marked the limit of the grant. But probably the cases are comparatively rare in which that understanding was acted on by an attempt subsequently to convey the land under water on the further side of the line at dates before the transactions with which we have to deal. The title to such land was not considered of much importance in the early days, or worth the trouble of an independent survey. See Newson v. Pryor, 7 Wheat. 7, 11, 5 L. ed. 382, 383. The United States was more anxious for settlers than for revenue from that source. It is not necessary to consider how we should decide the case with our present light if the question were a new one. It is not new. For twelve years the decisions in Hardin v. Jordan and Mitchell v. Smale have stood as authoritative declarations of the law. Probably in most cases the statute of limitations has cured the defects of title which those cases may have shown. Meantime many titles must have passed on the faith of those decisions. The United States can meet them by the form of its conveyances. It seems to us that it would be likely to do more harm than good to allow them to be called in question now.
It is said that the land under water was not embraced in the survey of 1834. It would seem from the plat and the field notes that the sections and dividing lines were clearly marked off and posts set. The case is similar to Kean v. Roby, 145 Ind. 221, 42 N. E. 1011, where the survey was pronounced sufficient. No difficulty was felt on the ground that the survey did not cover the submerged land in Hardin v. Jordan, 140 U.S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838. But furthermore, the land was selected as 'swamp and overflowed lands' by the state. It not appearing otherwise, the selection must be presumed to have included the land overflowed, and if so it was confirmed to the state by the act of March 3, 1857, chap. 117 (11 Stat. at L. 251, Rev. Stat. § 2484, U.S.C.omp. Stat. 1901, p. 1588). The confirmation encounters none of the difficulties of cases like Stoneroad v. Stoneroad, 158 U.S. 240, 39 L. ed. 966, 15 Sup. Ct. Rep. 822. The land surrounding the water, at least, was surveyed, so that the identification of the submerged portion was absolute. We are of opinion that the state of Indiana got a title to the whole land in dispute.
If the state of Indiana got a title, it gave one. There is not much controversy on this point. We should follow the decision of the state court in this case so far as this question is concerned, if there was no other evidence of the state law. But the law of Indiana is shown, by the other cases cited above, to be clear on this point.
The resurvey by the United States in 1874 does not affect the Calumet company's rights. As the United States already had conveyed the lands, it had no jurisdiction to intermeddle with them in the form of a second survey. Hardin v. Jordan, 140 U.S. 371, 400, 35 L. ed. 428, 439, 11 Sup. Ct. Rep. 808, 838; Grand Rapids & I. R. Co. v. Butler, 159 U.S. 87, 94, 95, 40 L. ed. 85, 88, 15 Sup. Ct. Rep. 991; St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 289, 19 L. ed. 74, 78.
Of course, we shall not undertake to revise the finding of the state courts that the statute of limitations had not run in favor of the plaintiffs in error, and that, if anyone is to profit by it, the Calumet company would prevail.
Judgment affirmed.
Mr. Justice White, with whom concurs Mr. Justice McKenna, dissenting:

## Notes

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