The question of the title of a riparian owner is one of local
law, and unrestricted grants of the government, bounded on streams
and other waters, are to be construed according to the law of the
state in which the lands lie.
Hardin v. Jordan,
140 U. S. 371.
Government surveys of public lands are not open to collateral
attack in an action at law between private parties.
A meander line is not a line of boundary, but a means of
ascertaining the quantity of land in the fraction which is to be
paid for by the purchaser.
Where the government has surveyed and patented the lands up to
the bank of a channel in which an unsurveyed island is situated, a
patentee of the land on such bank, although his land may itself be
an island surrounded by two channels of the river, has all the
rights of a riparian owner in the channel lying opposite his banks,
including the unsurveyed island, if, as a riparian owner, he is
entitled thereto by the laws of the state.
By the law of Nebraska, as interpreted by its highest court,
riparian proprietors own the bed of a stream to the center of the
channel. The government, as original proprietor, has the right to
survey and sell any lands, including islands in a river or any
other body of water, and if it omits to survey an island in a
stream and refuses to do so when its attention is called to tho
matter, no citizen can overrule the department, and assuming that
the island should be surveyed, occupy it for homestead or
preemption entry. In such a case, the rights of riparian owners are
to be preferred to those of the settler.
This was an action commenced on June 27, 1898, in the District
Court of Buffalo County, Nebraska, and terminated by a decision of
the supreme court of the state. 65 Neb. 137. The facts found by the
district court are that McBride and Kingore were respectively the
owners and in possession of tracts of land bordering on the Platte
River, one on the north and the other on the south side thereof.
Between these two tracts, and in the main channel of the Platte
River, is an island, containing about 22 acres. This island had
Page 197 U. S. 511
been in the possession of McBride and Kingore for more than ten
years prior to the bringing of the action, but during that time
they were contending as to how much of the land each was entitled
to. It had never been surveyed by the government.
It appeared in evidence that Whitaker, in 1897, settled on the
island, claiming the right to enter the same as a homestead; that
application to the Land Department of the government to have the
island surveyed was, in 1897, refused, the Department declining to
take any action in the matter. These lands were a part of the Fort
Kearney Military Reservation, which was surveyed and sold under a
special Act of Congress dated July 21, 1876, 19 Stat. 94, the
patent to McBride, who had entered his tract as a homestead,
bearing date March 28, 1885. There was testimony tending to show
that the island was, at the time of the survey of the reservation,
frequently covered with water, and that, since then -- perhaps
owing to the construction of bridges and dykes -- overflows had
been less frequent and the land better adapted to occupation and
cultivation. The decree directed by the supreme court was adverse
to Whitaker, and quieted the title to McBride and Kingore to the
island, giving to each one-half.
MR. JUSTICE BREWER delivered the opinion of the Court.
The decision of the supreme court of the state was that the
owner of lands bordering on a river owns to the center of the
channel, and takes title to any small bodies of land on his side of
the channel that have not been surveyed or sold by the government.
It is the settled rule that the question of the
Page 197 U. S. 512
title of a riparian owner is one of local law. In
Hardin v.
Jordan, 140 U. S. 371, the
matter was discussed at some length, the authorities cited, and the
conclusion thus stated by Mr. Justice Bradley, delivering the
opinion of the Court (p.
140 U. S.
384):
"In our judgment, the grants of the government for lands bounded
on streams and other waters, without any reservation or restriction
of terms, are to be construed as to their effect according to the
law of the state in which the lands lie."
See also Shively v. Bowlby, 152 U.
S. 45;
Lowndes v. Huntington, 153 U.
S. 19;
Grand Rapids &c. Railroad Company v.
Butler, 159 U. S. 87,
159 U. S. 92;
St. Anthony Falls Power Company v. Water Commissioners,
168 U. S. 349;
Kean v. Calumet Canal Co., 190 U.
S. 452;
Hardin v. Shedd, 190 U.
S. 508.
If there were no island in this case, it would not, under these
authorities, be questioned that the title of the riparian owners
extended to the center of the channel. How far does the fact that
there is this unsurveyed island in the river abridge the scope of
the rule? In seeking an answer to this question, these facts must
be borne in mind. The official surveys made by the government are
not open to collateral attack in an action at law between private
parties.
Stoneroad v. Stoneroad, 158 U.
S. 240;
Russell v. Maxwell Land Grant Co.,
158 U. S. 253;
Horne v. Smith, 159 U. S. 40. A
meander line is not a line of boundary, but one designed to point
out the sinuosity of the bank or shore, and a means of ascertaining
the quantity of land in the fraction which is to be paid for by the
purchaser.
Railroad Company v.
Schurmeir, 7 Wall. 272;
Hardin v. Jordan,
140 U. S. 371;
Horne v. Smith, 159 U. S. 40. The
Fort Kearney Reservation was a single body of land whose survey was
directed by a special act of Congress, and there is nothing to show
that, in making the survey, there was any intentional wrong on the
part of the surveyors. Evidently the survey of the entire tract was
completed before the lands, or any part of them, were offered for
sale. According to statements in the brief of counsel for plaintiff
in error as well as in the opinion of the Secretary of the Interior
in In re Christensen, 25 L.D. 413,
Page 197 U. S. 513
there were several islands in the Platte River within the
reservation not surveyed. The Secretary says that it does not
appear why the lines of survey were not extended over these
islands, but in the brief of counsel as well as in the opinion of
the supreme court, it is stated that the instructions issued by the
Land Department to the surveyors were to survey all islands of
twenty-one acres and upwards. The reason of the Department, or of
the surveyors (whichever may have been responsible for the omission
to survey these small islands) for these omissions is not
disclosed. Possibly they may have been regarded as having no
stability as tracts of land, but as mere sandbars, which are
frequently found in western waters, and are of temporary duration,
existing today and gone tomorrow. Be that as it may, there is
nothing to indicate any fraud or mistake on the part of the
surveyors. Doubtless this island of about twenty-two acres was
regarded as coming within their instructions, and very likely at
the time of the survey did not contain even twenty-one acres.
Further, an application for a survey of this island was refused,
and this refusal was repeated once or twice. The Secretary of the
Interior based his action on the decision of this Court in
Grand Rapids & Indiana Railroad Company v. Butler,
159 U. S. 87, and
held that the Department was precluded from a survey and sale of an
island after the lands on the adjacent banks of the river had been
surveyed and sold. In the
Grand Rapids case, it appeared
that the land on the east bank of Grand River had been surveyed in
1831, and that, on the west bank of the river in 1837, and also
that included in this last survey were four islands. Upon these
surveys, the adjacent land and the islands were sold and patented
to private parties. In 1855, a parcel of ground in the river was,
under instructions from the Surveyor General, surveyed and marked
"Island No. 5," and for that island a patent was issued to the
railroad company. We held that the patent to the riparian owner
issued before the date of the last survey conveyed to him the title
to the island, saying (p.
159 U. S. 95):
Page 197 U. S. 514
"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."
These considerations furnish a sufficient answer to the
question, and sustain the decision of the Supreme Court of
Nebraska.
It is further contended that the land of one of these patentees
is itself part to an island, and that therefore he has no riparian
rights. It is sufficient reply to this contention that the
government surveyed and patented the lands up to the banks of the
channel in which the island in controversy is situated, and a
patentee, although his land may be itself surrounded by two
channels of the river, has all the rights of a riparian owner in
the channel lying opposite his banks.
Nothing herein stated conflicts with
Horne v. Smith,
159 U. S. 40;
Niles v. Cedar Point Club, 175 U.
S. 300;
French-Glenn Live Stock Co. v.
Springer, 185 U. S. 47; or
Kirwan v. Murphy, 189 U. S. 35. In
the first of those cases, it appeared that the survey stopped at a
bayou, and did not extend to the main channel of the Indian River,
a mile distant, and we held that the line of that bayou must be
considered as the boundary of the grant; that it could not be
extended over the unsurveyed land between the bayou and the main
channel of the Indian River; that it was a case of an omission from
the survey of land that ought to have been surveyed, and that such
omission did not operate to transfer unsurveyed land to the
patentee of the surveyed land bordering on the bayou. In the
second, we held that, as the survey showed a meander line bordering
on a tract of swamp or marsh lands, the grant by patent terminated
at the meander line, and did not carry the swamp lands lying
between it and the shores of Lake Erie. In the third, it appeared
that there was no body of water in front of the meandered line,
Page 197 U. S. 515
and we held that that line must therefore be the limit of the
grant, and the fact that outside the side lines extended there was
a body of water did not operate to extend the grant into any
portion of that body of water. In the last of these cases, the
complainants, the owners of 859.38 acres as shown by the
descriptions in their patents of fractional lots, claimed by reason
thereof to be the owners of 1,202 acres lying between the meandered
lines and a lake, and sought by injunction to restrain the Land
Department from making a survey of these latter lands. We held that
injunction would not lie, and that the officers of the government
could not be restrained from making a survey; that the rights of
the complainants could be settled, after a survey and transfer of
the legal title from the government, by an action at law.
It is suggested in one of the briefs that this island extends up
or down the river beyond the side lines of the tracts belonging to
these riparian proprietors. A plat which is in evidence seems to
support this statement, but the finding of the trial court, which
is not disturbed by the supreme court, is to the effect that it
lies between the tracts of the riparian proprietors. Of course,
their title is only to the land which is in front of their banks,
and not beyond the side lines in either direction.
It must also be noticed that the government is not a party to
this litigation, and nothing we have said is to be construed as a
determination of the power of the government to order a survey of
this island, or of the rights which would result in case it did
make such survey. As we reserve the rights of the United States, we
do not even impliedly sanction the intimation contained in the
opinion of the court below that, under the decision in
Hardin
v. Jordan, 140 U. S. 371,
although, on nonnavigable waters, riparian rights were not
conferred by the state law, nevertheless the land beyond the banks
passed to the state in virtue of the patents of the United States
to the lot owners. Upon that question we express no opinion.
Our conclusion, therefore, is that, by the law of Nebraska, as
interpreted by its highest court, the riparian proprietors are
Page 197 U. S. 516
the owners of the bed of a stream to the center of the channel;
that the government, as original proprietor, has the right to
survey and sell any lands, including islands in a river or other
body of water; that, if it omits to survey an island in a stream,
and refuses, when its attention is called to the matter, to make
any survey thereof, no citizen can overrule the action of the
Department, assume that the island ought to have been surveyed, and
proceed to occupy it for the purposes of homestead or preemption
entry. In such a case, the rights of riparian proprietors are to be
preferred to the claims of the settler.
We see no error in the judgment of the Supreme Court of
Nebraska, and it is
Affirmed.
