Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1879-03-31
LAMBS ISLAND.

AIA4AO ~ AOAAA\DA
The Question of Its Owershib Settled by the
Supreme Court-nIajority Opinion Con-
hrming the Title In the St. Paul 3 Pacific
Railroad Company-D Dissenting Opinion
byJudge Berry. Sd s
Supreme Court.
The Saint Paul, Saltwater g. Tsylofa Falls
Railroad Company, appellant, VS.. Tie First
Division u The Saint Paul & Pacific Railroad
Company, John s. Kennedy, Horace Thomp-
son and Edmund Rice, mortgages in possess
ion in trust for the mortgage bondholders OF
the defendant, The First Division Of the Saint
Paul Il Pacific Railroad Company, rsspondants:
OPINION.
The controversy in this is concerning the
| title to strip of land ying along the north
erly shore of the Mississippi river at st. Paul,
and opposite lot |, section S, town %, range
~, and lots and a. section 80, town 20. range
Robert, March "a, 1919, and lots 8 and 4 to
Norman W. Mttson, the same date. The sur
veys were made in 1848. and approved and the
official plats Of the townships were Of course at
the date Of the patents, on file in the land Of
" i9S1
| general land Office, surveyed as an island, and
inserted upon the plats as lot 3,,iisection 5
above, and lot of section 80 above and April
2, 1858, was conveyed by patent to John NJ.
Lamb. Under the latter this plaintiff claims
title, the defendants under Robert and Kittson,
lots and 4, section 5, and lots and 4. section
80, abut according to the official plat the river
The plaintiffs claim as fact that at the date Of
the patents to Robert and Kittson, the strip in
controversy. was an island surrounded at all
stages of water by the waters of the river with a
channel and current between it and the main
| shore the defendant claim as fact that it
| was then part Of the main shore, although in
| high water entirely, and in medium and low
water partly separated from it by a slough into
which the waters of the river flowed. As a
question of law, the defendant claim that the
rule of the common law that the grantee in
grant bounded generally upon norl-navigable
stream, takes to the middle Of the stream, is in
| this State applicable to the Mississippi river
and it's tributaries, they being now navigable
IN the construction Of grants, and that this
rule controls ID the construction of patents of
the public lands issued by the general govern.
ment, az well as to conveyances between pri-
vate persons. The plaintiffs claim that the
patent of a governmental subdivision, border
ing on stream navigable in fact takes only to
the meandered line, or at most that be takes
| only to low water mark.
On the trial below, the parties having given
evidence of their respective claims as to the
tact, and rested, the court held that the pnt-
| entees Robert and Kittson, took under their
patents to the middle line OF the river, and d.
rooted verdict for the defendants. From ali
| order denying a new trial this appeal is taken.
This court in Schurmeier VS.. The st. Paul &
PACIFIC railroad company. Is Mimi, 80, decided
visions bordering on navigable rivers do not
limit the grant in patent, and this decision
was affirmed by the supreme court of the Unit
ed States in the same case, z Wall, 272. The
question is therefore set at rest. In the same
case this court held that the common law rule
as to the construction of grants of land Dor
derang on Streams is in force in this State, and
is applicable to patents or grants of the public
lands by the general government But patents
and grants by the general government may be
controlled in this respect as in others BY the
acts Of Congress regulating the hirVey and sale
Of the public lands, and In the case we have
cited tie Supreme court of the United States
decided that under the various acts Of Congress
providing for the survey ana sale OF the public
| lands, the title Of the patentee of lands bor-
dering on streams navigable in fact, stops at
the stream, and that the title to the bed of
| such streams is reserved to the government.
This being a construction Of statutes Of the
United States by the court Of last resort is
binding and settles the rule applicable to pat
| ents of the public lands by the general govern
ment issues PURSUANT to the statutes referred
to-
The court below was therefore wrong in it's
reason for directing verdict.
| from this reason the defendants We're entitled
to verdict. The record contains copies of the
official plats OF section 5, town %, and section
! ~, town %. Upon these plats tho Mississippi
river through or opposite these sections is de-
ineated- The piats show no island in that
part OF the river, no land between which and
the main land any channel runs. From these
it appears that the lots granted to Robert and
Klttson extend to the body of the river, the
main stream. by the survey as shown on the
plats the strip in question was surveyed, not as
| an island, but part of the main land; and in.
eluded in those LOTS After tie government
had sold lands accardiig to survey and plats,
1t cannot (as general rule at least) dispute the
truth OF such survey and plats. Bolts VS.. Ill.
Cent r. R. Co., l Black, Ia, 4. Lindsay vs..
Howes, ib. 554. Railroad Co. VS.. Schurmeier,
7 Wall, 272.
If there be any case in which after sale of
the lands the government may question the
accuracy of the survey and plat by which it is
! sold, 1t is not such case as this.
There is nothing to call in question9the good
| faith towards the government of the surveyors
| who made the first survey.
| The testimony makes it doubtful whether a
| the time OF that survey the slip in controversy
was an island or part of the main land, In
such case the surveyors may determine to the
BEST Ut their judgment whether such strip
| should be surveyed an island or as part Of
the main land, and if their survey is approved,
and the land sold according to it, the govern
| A1AOuo 10 OOuuu NY CuelE dCG1On.
! This being 40, the title to the strip in cues.
t1on passed under the patents to Robert and
hlttson and as consequence the subsequent
survey and plating of it as island was unau-
thorlzed, and the patent issued to Lamb pur-
suant to it passed no title. For the same rea-
son the proceedings of the officers of the
land oihce upon Lambs application to pre-
empt under the subsequent survey which
DEFENDANTS ae5e IS, offered to Troye were
to determine Sss5i anvt5no
latlon to lands which the United States had
already conveyed. There was no error in ex-
| Guiding evidence of those proceedings.
Under the views we have expressed as to the
erect OF the original surveys and plats, and
| the grants to Robert and Kittson under them.
the direction of the court to the jury to return
verolct In favor OF defendant was right.
Order affirmed. G11F111AN. G. T.
DISSENTING OPINION BY JUDGE BERRY.
As stated in the majority opinion the official
plats of the townships in which the lots pur
chased of the United States by Robert & Kilt
son lie, contain aelineation of that part of
the Mississippi river lying on those townships,
and such plats show no island in the river OPP
posite said lots.
from this representation of the river. it does
not IN any way appear whether there was an
Island there or not, nor that the land
IN controversy was included in the
original survey. Now, as under the decision of
the supreme court of the United States, ripar-
ian owner upon the Mississippi takes to the
stream and no further, island, that is a body
OF land separated from the shore by part Of
the stream, does not pass to the owner Of the
shore lying opposite to it by virtue Of his |
riparian ownership. He stops at the stream.
1t there is an island opposite his land he does |
not acquire it.. He has therefore no RIGHT to in |
sist that the plat shall show such island if any
there be. The United States is under no obli- |