The decision by a state court that the pleadings were sufficient
to permit the examination and determination of the case presents no
federal question.
While the rule is that this Court, upon a writ of error to the
highest court of a state in an action at law, cannot review its
judgment upon a question of fact, it is unnecessary to consider the
extent of the power of the court in that particular in chancery
cases, as this Court concurs with the result reached by the state
court that when the survey was made of the land in controversy,
there was no reservation made of the island, and no act on the part
of the government showing any intention to reserve it.
In Michigan, a grant of land bounded by a stream, whether
navigable in fact or not, carries with it the bed of the stream to
the center of the thread thereof.
The court has no doubt upon the evidence that the circumstances
were such at the time of the survey as naturally induced the
surveyor to decline to survey the tract in controversy as an
island; that there is nothing
Page 159 U. S. 88
to indicate mistake or fraud, and the government has taken no
steps predicated on that theory, and that the judgment of the
Supreme Court of the Michigan was right.
This was a bill filed by John Butler in the Circuit Court of the
County of Kent, in the State of Michigan, against the Grand Rapids
and Indiana Railroad Company and others to quiet title to certain
land in that county, resulting in a decree in complainant's favor
which was afterwards affirmed by the supreme court of the state, to
review whose judgment this writ of error was sued out. The case is
reported 85 Mich. 246.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The fractional north half of the southeast quarter of section
25, township 7 north, range 12 west, is located on the east bank of
Grand River, and early in 1831 that part of the town lying east of
the river was surveyed an subdivided, and the east bank of the
river was meandered and surveyed. In 1837, the west bank of the
river was meandered and surveyed, as were also four islands in the
stream, designated as Islands Nos. 1, 2, 3, and 4, and that part of
the town lying west of the river was surveyed and subdivided.
The north fractional half of the southeast quarter of section 25
was entered by Lyon and Hastings September 25, 1832, and patent
therefor issued to them November 5, 1833. Butler derived title
under Lyon and Hastings, and claimed the land in dispute by virtue
of riparian ownership, as taking, under the laws of Michigan, the
bed of the stream to the thread thereof.
In 1855, a piece of ground in the river lying opposite land of
which Butler's formed a part was surveyed and marked by the deputy
surveyor, "Island No. 5 in Grand River." This survey
Page 159 U. S. 89
purported to be made in pursuance of instructions given May 24,
1854, by the Surveyor General for Ohio, Indiana, and Michigan,
whereby the deputy was authorized to survey the islands in certain
lakes and in Grand River, Michigan, and was made in the third
quarter of 1855. The verification by the deputy was in February,
1856, and by the chainmen November 22, 1856.
In 1871, the Grand Rapids and Indiana Railroad Company procured
from the General Land Office a patent which, with many thousand
acres of land, covered Island No. 5, in Grand River, containing
2.56 acres; but this patent was not recorded until August 9, 1887,
and on September 9 following, this bill was filed.
Complainant put himself upon these two propositions:
"First. At the time of the survey and sale of the lands on the
bank, the spot in question was not an island in fact, and was not
treated by the authorities as such; second, whatever its character,
inasmuch as it was not meandered or set apart as an island, it
passed to the riparian proprietor, as appurtenant to the grant of
the lands on the bank."
The Supreme Court of Michigan said (p. 250):
"A large mass of testimony was taken as to the character of this
so-called island at the time of the original surveys, and for some
years subsequent; the complainant's testimony tending to show that
it was at first a low sandbar, covered a good part of the year with
water, and the defendant's testimony tending to show that it was
then a well defined island. It is immaterial to determine what the
facts are as to the condition of this land in those early days, for
in our judgment it is of no consequence whether it was what might
be termed 'an island' or a 'sandbar,' or a 'piece of low wet
ground.' The law is the same in either case."
The court called attention to the surveys of 1831 and 1837, in
neither of which was any island meandered or surveyed on the site
of Island No. 5, and to the fact that in the survey of 1837, the
acreage of the four islands and of the mainland was given, and
observed:
"In surveying Island No. 3, the surveyor began at the lower end
of the island. The eleventh course
Page 159 U. S. 90
took him 'to maple on the head of island.' After taking his next
course from the maple, he made the following record: 'Channel
between this and low willow isle 75 lks. wide and 3 ft. deep
opposite ft. of willow isle on left, 250 of low wet ground on left
to channel.' This 'low willow isle' is evidently what is now known
as 'Island No. 5,' as changed by the action of the water."
It was further stated:
"The channel between the islands and the east bank was from
seventy-five to one hundred feet wide. The channel between the
islands and the west bank was several times wider. The depth of the
water in each was about the same. The middle thread of the river
was therefore west of the islands. About the year 1836, steamboats
were placed on the river, and docks were erected on the east bank,
nearly opposite Island No. 1. The principal business by boat was
with the east side, where the City of Grand Rapids was situated.
Steamboats also ran up the west channel to a steamboat warehouse on
the west side of the river. About the year 1870, the east channel
opposite Islands Nos. 1 and 2 was filled up, and the city
constructed a sewer into and through that channel. The upper part
of this channel was gradually filled, mainly by the owners of land
upon the east bank. By these fillings, this island has for some
time been connected with and become a part of the mainland. The
channel has been dredged out east of Island No. 3, and a steamboat
slip and landing constructed, the upper end of which is a
considerable distance below Island No. 5."
The court also found that Butler's possession of the premises
was sufficient to maintain his suit, and some other matters were
considered not necessary to be adverted to.
The court held that the well recognized rule in Michigan was
that a grantee of land bounded in the deed of conveyance by a
stream takes title to the land under the water to the thread of the
stream in the absence of an express reservation; that reservation
cannot be implied; that when the government has surveyed its lands
along the bank of a river and has sold and conveyed such lands by
government subdivisions, its patent conveys the title to all
islands lying between the meander line
Page 159 U. S. 91
and the middle thread of the river unless, previous to such
patent, it has surveyed such islands as governmental subdivisions
or expressly reserves them when not surveyed; that the grant to
Lyon and Hastings was made under the survey of 1831, by which, as
the court found, "both banks of Grand River were meandered, and by
which the middle thread of the river was fixed west of this
island," and that the grant clearly vested in them title to the
land in controversy, of which no subsequent survey by the
government could deprive them; that there was no force in the
objection that this was equivalent to a proceeding to cancel the
patent, since, in this or any similar action, what was involved was
the establishment of the fact that the title had passed by a former
grant, and therefore that the government had no title to convey, in
which cases courts protect purchasers from subsequent surveys.
The errors assigned are grouped by counsel, and stated thus:
that the point that the land in question, even though an island,
passed to Lyon and Hastings under their patent, if not reserved,
was not properly before the court, under the pleadings; that "the
court erred in holding as matter of fact, on this record, that the
island was not reserved in the Lyon and Hastings patent;" and
that
"the court erred in holding, upon this record, that Island 5
passed to Lyon and Hastings, under the patent to them in 1833 of
the north fraction of the southeast 1/4 of section 25, township
7-12."
The state court held, however, the pleadings sufficient to
permit of the examination and determination of the point on which
its decision turned, and that conclusion involved no federal
question.
And, as to the second proposition, it may be said that while the
rule is that this Court, upon a writ of error to the highest court
of a state in an action at law, cannot review its judgment upon a
question of fact,
Dower v. Richards, 151 U.
S. 658, it is unnecessary to consider the extent of the
power of this Court in that particular in chancery cases, as we
entirely concur in the result reached by the state court that there
was no such reservation, and in its findings as follows:
"In the present case, there is no act on the part of the
government
Page 159 U. S. 92
showing any intention to reserve this land. The only inference
that can be drawn from the facts is that the government agents, its
surveyors, did not consider it of sufficient value to survey. It
was not surveyed until about twenty-five years after the survey of
1831, and not till nearly twenty years after the survey of 1837,
when the other islands and the lands upon the west bank were
surveyed, thus completing the survey in that region."
The inquiry is reduced, then, to this: did the court err in
holding as matter of law upon this record that the grant vested in
Lyon and Hastings the title to the particular land in
controversy?
In
Hardin v. Jordan, 140 U. S. 371,
838, it was held that grants by the United States of its public
lands bounded on streams and other waters, made without reservation
or restriction, are to be construed as to their effect according to
the law of the state in which the land lies, and the following from
the opinion of Scates, J., in
Middleton v. Pritchard, 3
Scammon 510, was quoted with approval:
"Where the government has not reserved any right or interest
that might pass by the grant, nor done any act showing an intention
of reservation, such as platting or surveying, we must construe its
grant most favorably for the grantee, and that it intended all that
might pass by it. What will pass, then, by a grant bounded by a
stream of water? At common law, this depended upon the character of
the stream or water. If it were a navigable stream or water, the
riparian proprietor extended only to high water mark. If it were a
stream not navigable, the rights of the riparian owner extended to
the center thread of the current. . . . At common law, only arms of
the sea, and streams where the tide ebbs and flows, are deemed
navigable. Streams above tidewater, although navigable in fact at
all times, or in freshets, were not deemed navigable in law. To
these riparian proprietors bounded on or by the river could acquire
exclusive ownership of the soil, water, and fishery to the middle
thread of the current, subject however to the public easement of
navigation. And this latter, Chancellor Kent says, bears a perfect
resemblance to public highways. The consequence of
Page 159 U. S. 93
this doctrine is that all grants bounded upon a river not
navigable by common law entitle the grantee to all islands lying
between the mainland and the center thread of the current. And we
feel bound so to construe grants by the government, according to
the principles of the common law, unless the government has done
some act to qualify or exclude the right. . . . The United States
have not repealed the common law as to the interpretation of their
own grants nor explained what interpretation or limitation should
be given to or imposed upon the terms of the ordinary conveyances
which they use, except in a few special instances, but these are
left to the principles of law, and rules adopted by each local
government where the land may lie. We have adopted the common law,
and must therefore apply its principles to the interpretation of
their grant."
Hardin v. Jordan was a case from Illinois, and the
question was as to the effect of the title granted by the United
States along a small lake, in respect of the bed of the lake in
front of the land actually described in the grant, and we said:
"This question must be decided by some rule of law, and no rule
of law can be resorted to for the purpose except the local law of
the State of Illinois. If the boundary of the land granted had been
a fresh water river, there can be no doubt that the effect of the
grant would have been such as is given to such grants by the law of
the state, extending either to the margin or center of the stream,
according to the rules of that law. It has been the practice of the
government from its origin, in disposing of the public lands, to
measure the price to be paid for them by the quantity of upland
granted, no charge being made for the lands under the bed of the
stream or other body of water. The meander lines run along or near
the margin of such waters are run for the purpose of ascertaining
the exact quantity of the upland to be charged for, and not for the
purpose of limiting the title of the grantee to such meander
lines."
And see Packer v. Bird, 137 U.
S. 661;
St. Louis v. Rutz, 138 U.
S. 226;
Shively v. Bowlby, 152 U. S.
1.
In Michigan, the common law prevails, and the rule is sustained
by an unbroken line of authorities that a grant of land
Page 159 U. S. 94
bounded by a stream, whether navigable in fact or not, carries
with it the bed of the stream to the center of the thread thereof.
Norris v. Hill, 1 Mich. 202;
Lorman v. Benson, 8
Mich. 18;
Rice v. Ruddiman, 10 Mich. 125;
Ryan v.
Brown, 18 Mich. 196;
Watson v. Peters, 26 Mich. 508;
Pere Marquette Boom Co. v. Adams, 44 Mich. 403;
Fletcher v. Thunder Bay Co., 51 Mich. 277;
Turner v.
Holland, 65 Mich. 453;
City of Grand Rapids v.
Powers, 89 Mich. 94, and many other cases.
In
Mitchell v. Smale, 140 U. S. 406,
140 U. S.
412-413, a similar question to that disposed of in
Hardin v. Jordan arose, and Mr. Justice Bradley, speaking
for the Court, said:
"We think it a great hardship, and one not to be endured, for
the government officers to make new surveys and grants of the beds
of such lakes, after selling and granting the lands bordering
thereon or represented so to be. It is nothing more or less than
taking from the first grantee a most valuable, and often
the most valuable, part of his grant. Plenty of
speculators will always be found, as such property increases in
value, to enter it and deprive the proper owner of its enjoyment,
and to place such persons in possession under a new survey and
grant, and put the original grantee of the adjoining property to
his action of ejectment and plenary proof of his own title, is a
cause of vexatious litigation which ought not to be created or
sanctioned. . . . We do not mean to say that in running a pretended
meander line, the surveyor may not make a plain and obvious
mistake, or be guilty of a palpable fraud, in which case the
government would have the right to recall the survey and have it
corrected by the courts or in some other way. Cases have happened
in which, by mistake, the meander line described by a surveyor in
the field notes of his survey did not approach the water line
intended to be portrayed. Such mistakes, of course, do not bind the
government. Nor do we mean to say that in granting lands bordering
on a nonnavigable lake or stream, the authorities might not
formerly, by express words, have limited the granted premises to
the water's edge, and reserved the right to survey and grant out
the lake or river bottom to other
Page 159 U. S. 95
parties. But, since the grant to the respective states of all
swamp and overflowed lands therein, this cannot be done. In the
present case, it cannot be seriously contended that any palpable
mistake was made or that any fraud was committed by the surveyor
who made the survey of 1834-1835."
We have no doubt upon the evidence that the circumstances were
such at the time of the survey as naturally induced the surveyor to
decline to survey this particular spot as an island. There is
nothing to indicate mistake or fraud, and the government has never
taken any steps predicated on such a theory, and did not survey the
so-called Island No. 5 until twenty-five years after the survey of
1831 and nearly twenty years after that of 1837.
Although the facts were wholly different in
Horne v. Smith,
ante, 159 U. S. 40, that
case will be found instructive in connection with the questions
arising here.
The Supreme Court of Michigan was right in holding that whatever
there was of this conformation passed under the grant to Lyon and
Hastings.
Judgment affirmed.