Where reference was made in deeds to a recorded plat, and in an
ejectment suit evidence was offered to show that this plat differed
from the original plat, the evidence ought not to have been
admitted. If an error existed, the proper remedy was in chancery to
reform the deeds.
And where the deeds under which both parties claimed referred to
this plat, it was of no consequence, whether or not the plat was
recorded precisely according to the requisitions of a statute of
the state.
The true rule for the jury would have been to ascertain whether
the lot claimed by the plaintiff had any waterfront at the time the
deed under which he claimed was executed, and not whether it had a
waterfront at the time when the lot was originally laid out.
In case it should be found that the lot in question was entitled
to a waterfront at the time of the execution of the deed to the
plaintiff, then the rule adopted by the court below for dividing
the made ground was not a correct rule.
The true rule pointed out.
The case is stated in the opinion of the Court, but it is
difficult for the reader to understand the points unless with the
assistance of an explanatory map. Many of these were used during
the argument, but the sketch here presented, may convey some idea
of the locality.
image:a
Johnston, who brought the ejectment in the court below, was the
owner of lot No. 34. Jones and Marsh claimed that lot No. 35 was
entitled to the whole benefit of the alluvion. There
Page 59 U. S. 151
were three trials in the court below, the last of which resulted
in a verdict and judgment for the plaintiff as follows:
"Beginning at a point on the line between lots thirty-four and
thirty-five, in Kinzie's addition to Chicago, Cook County,
Illinois, three hundred feet southerly of the south line of North
Water Street, measuring on that line for distance; thence south,
eleven degrees and thirty minutes, east, one hundred and
thirty-five feet, to the north pier; thence easterly along the
north pier to the shore of Lake Michigan; thence northwardly along
the lake shore two hundred and twenty-two feet; thence westerly in
a straight line to the place of beginning."
The instructions given to the jury by the circuit court are
stated in the opinion of the Court.
MR. JUSTICE NELSON delivered the opinion of the Court.
The suit below, was an action of ejectment, brought by Johnston,
against Jones and Marsh to recover a tract of alluvial land in the
City of Chicago, formed in Lake Michigan, adjoining the north pier
of Chicago harbor, and which is claimed as an accretion to water
lot No. 34, in Kinzie's addition. The defendant, Jones, is owner of
lot No. 35, in said addition, lying east, and adjoining 34, and
between that and the lake.
Both parties claim under Robert A. Kinzie, the patentee of the
north fractional section 10, in township 39, which was situate in
the bend of the Chicago River at its mouth, and bounded southerly
by that river, and easterly by the Michigan Lake. Kinzie, the
patentee, in February, 1833, laid out an addition to the Town of
Chicago upon this fractional section, and made a plat of the same,
which was recorded in the recorder's office of the county on the
18th of January, 1834, according to the requirements of the laws of
the State of Illinois. On this plat, lot No. 34, is one of a series
of water lots, bounded
Page 59 U. S. 152
on the south side of North Water Street, sixty feet, as its
northerly boundary, and is included within lines dropped from the
fixed corners on that street at right angles with the same, and
extended until they intersect the lake shore. Lot No. 35, is the
next lot east, of the same width, on Water Street, and extended in
like manner to the lake, its west line being the east line of
34.
On the 25th of February, 1833, R. A. Kinzie conveyed to John H.
Kinzie, several lots in this addition, and among others, lot No.
35. And on the 1st September, 1834, John H. conveyed the same to
Jones, the defendant, describing it in the deed as in Kinzie's
addition, and as "being water lot No. 35," &c., "agreeably to
the town plat, recorded in the office of the recorder of the said
County of Cook, to which reference may be had if necessary."
On the 22d of October, 1835, R. A. Kinzie, conveyed to Johnston,
the plaintiff, lot No. 34, describing it as lying in Kinzie's
addition, and known as water lot No. 34, "as will more fully
appear, reference being had to said plat as recorded in the
recorder's office of the Town of Chicago in the County of Cook,"
&c.
In the summer of 1833, the general government commenced the
construction of the harbor of the City of Chicago, which is formed
by an erection of two piers across this fractional section 10, from
the curve of the Chicago River, as it takes a direction southerly
to the lake, and for a considerable distance into the lake, the
effect of which was to turn the river from its sweep southerly
across the sand bar to the waters of the lake between the two
piers, and thus opening a passage for vessels into the town.
The south pier was built in 1833 and the north in 1834. The
harbor thus constructed divided several of the lots in Kinzie's
addition that bounded on Water Street, east and west, and, among
others, as is claimed by the defendant, No. 34, leaving a part of
it as originally laid out, south of the harbor.
Since the construction of the harbor and extension of the piers
into the waters of the lake, the shore above, or north of the
piers, has greatly changed, the firm land having increased by the
washing up of sand and earth and the recession of the waters to the
extent of some twelve hundred feet in width, and for a considerable
distance in length northward along the shore. The present suit is
brought to recover a portion of this alluvion or new-formed land,
as an increment or accession to lot No. 34. The plaintiff claims
that a part of its southern termination on the lake was north of
the piers, and contiguous to the new-formed land, and therefore
entitled to its share of the increment. The defendant contends that
no part of its boundary was on
Page 59 U. S. 153
the lake north of the harbor, and therefore no part connected
with or adjoining this land newly formed. On the contrary, that
part of his own lot, No. 35, which lies between 34 and the lake was
bounded on the lake south of the north pier, and hence cut off No.
34 from any portion of the alluvial accession.
The plaintiff insisted, on the trial, that the plat of Kinzie's
addition, as recorded in the recorder's office in January, 1834,
was incorrect, and produced what was claimed to be the original,
but which was not recorded when the conveyances of the lots in
question were executed. According to this original plat, as the
side lines were laid down, lot No. 34 appeared to be partially
bounded on the lake north of the harbor. In this respect, it
differed from the plat recorded, as, according to the side lines as
there extended, its entire boundary on the lake was south of the
harbor.
In laying out the addition by the surveyor in 1833, the only
lines of the lots run out or measured on the ground were those
butting on Water Street, the north lines of the lots. The side
lines depend upon their protraction on the plat of the addition,
and which, as we have already said, were formed by dropping them at
right angles from the corners on Water Street and extending them
till they intersected the lake. And even the lake shore, as laid
down on the plat -- as appears from the testimony of the surveyor
-- was ascertained without survey or measurement and with little
more accuracy than could be obtained from the eye.
The case was a good deal embarrassed on the trial arising out of
the evidence in respect to this original plat, and some
consideration and effect were given to it by the court in
submitting it to the jury. We think the court erred in admitting it
as evidence to control or in any way to affect the record plat.
Both lots in controversy were conveyed with express reference to
that, and without such reference there is not a sufficient
description given in the deeds of the boundaries to admit of a
location of either.
If there was in fact any error or mistake in this reference by
way of description of the premises conveyed, the remedy was in
chancery to reform the deed. So long as that remained unreformed,
the description of the lot by the reference to the recorded plat
was conclusive upon the parties.
The acts of the State of Illinois regulating the laying out of
town lots and the recording of the plats of the same were supposed
by the court below to have a bearing upon the questions involved,
and influenced the instructions given and refused to the jury. It
seemed to be admitted that the plat recorded did not conform in all
respects to the requirement of the statutes.
Page 59 U. S. 154
But it is not pretended that the omission in any way operated to
invalidate the deeds or affect prejudicially the rights of the
parties under them. Both parties stand upon the same footing in
this respect, as each claims under the same survey of the town, and
by reference to the same plat. We do not perceive that these acts
of the state have any material bearing upon the case, and should
not have been allowed to influence the trial. If the description in
the deeds was sufficiently certain, by a reference to the plat on
record, to identify and locate the lots, the title passed to the
grantees, whether the plat conformed to the acts of the legislature
or not. This is all that was material so far as the plat is
concerned.
The court, in instructing the jury, observed that the
controversy turned upon the length of the line dividing lot 34 from
35, before the north pier was constructed -- that whether in point
of fact it touched the shore of the lake before it reached the
pier, or the place where the pier was; in other words, whether
there was any waterline of lot 34 north of the north pier, and if
so, what was the extent of the waterline.
Again, the court charged, after adverting to the recorded plat
and to the question whether or not it was made in conformity to the
statutes of Illinois that if the jury should find the plat was not
so made and recorded, then they should determine, under all the
evidence in the case, whether or not, prior to the construction of
the north pier, the dividing line between lots 34 and 35 touched
the water at a point north of where the north pier was subsequently
placed; if it did, then the court was of opinion that the owner of
34 had a right to follow the water as the accretions were formed on
his waterline.
In these instructions we think the court erred.
As we have seen, this lot No. 34 was conveyed to the plaintiff
the 22d October, 1835, and described as included within side lines
dropped at right angles from the northwest and northeast corners on
Water Street, which were sixty feet apart, and fixed, and extended
in right lines till they intersected the shore of the lake below.
The boundaries therefore including and locating the lot were
specific and complete. The north boundary was marked on the south
side of Water Street; the side lines extended according to the plat
at right angles from Water Street to the lake; the lake was the
southern boundary which closed the lines of the lot.
Now in order to determine what land was conveyed to the
plaintiff by his deed of 22d October, 1835, all that was necessary
was to locate the lot upon the ground in conformity to the
description at that date. The calls in the deed having reference to
the plat furnished the necessary data for the location. There
Page 59 U. S. 155
was the fixed line north on the ground, the lake, a natural
object south, and the lot enclosed between two lines extending at
right angles from the corners on Water Street to the lake.
If the call for the southern boundary, instead of being a lake,
which is a shifting line, had been a permanent object such as a
street or wall, there could not be two opinions as to the location.
And yet the waterline, though it may gradually and imperceptibly
change, is just as fixed a boundary in the eye of the law as the
former. I speak not now of sudden and considerable changes, which
are governed by different principles.
The court below, as appears from the instructions referred to,
assumed that lot No. 34 should be located on the ground as of the
time of the survey and plat of February, 1833, some two years and
nine months previous to the conveyance to the plaintiff, and not at
the date of that conveyance, and if at that time the dividing line
between 34 and 35 would strike the lake north of where the north
pier of the harbor was subsequently built, so as to give a like
boundary at that time above the pier, the plaintiff would be
enabled to take under his deed not only lot 34, as laid down on the
plat, but all subsequent accretions by alluvion or dereliction,
whatever might be the extent of the new-formed land. By the like
assumption and process of reasoning, if the present plaintiff
should convey the lot with the same specific boundaries, the north
line sixty feet on Water Street, and side lines extending at right
angles to the lake, the deed would carry with it the whole of the
new-made land outside the lines of the deed which is now in
dispute, it being a tract from one hundred and thirty to two
hundred and twenty-two feet one way and some twelve hundred the
other.
Now one answer to this assumption is that a grantee can acquire
by his deed only the lands described in it by metes and bounds and
with sufficient certainty to enable a person of reasonable skill to
locate it, and cannot acquire lands outside of the description by
way of appurtenance or accession.
Lord Coke says: "A thing corporeal cannot properly be
appurtenant to a thing corporeal, nor a thing incorporeal to a
thing incorporeal." Coke Litt. 121, B.
And this Court, in
Harris v.
Elliot, 10 Pet. 54, after approving of the maxim of
Coke, observed that according to this rule, land cannot be
appurtenant to land. In the case of
Jackson v. Hathaway,
15 Johns. 454, the court said a mere easement may, without express
words, pass as an incident to the principal object of the grant,
but it would be absurd to allow the fee of one piece of land not
mentioned in the deed to pass as appurtenant to another distinct
parcel which is expressly granted by precise and definite
boundaries.
See also 7 Mass. 6.
Page 59 U. S. 156
Land gained from the sea either by alluvion or dereliction, if
the same be by little and little, by small and imperceptible
degrees, belongs to the owner of the land adjoining. 2 Bl.Com.
261-2. If, therefore, the rule be as supposed by the court below,
that the boundaries of lot 34 must be taken as it would have been
located at the time of the plat, and the southern limit to stop at
the waterline as it then existed, and the subsequent gain by
alluvion or dereliction to pass as appurtenant to the land
conveyed, the grantee would find it difficult upon this
construction to reach the lake at all. Certainly he could not, if
the waterline as it then existed is to be deemed the southern limit
as described in his deed, provided alluvial accretions had taken
place between the survey and plat and the date of the deed. The
land thus formed belonged to the adjoining owner for the time
being, and we have seen that the deed would not pass it as
appurtenant or incidental to the land granted.
But the true answer to the position assumed, and which governed
the trial below, is that the water boundary on the lake is to be
deemed the true southern boundary of the lot at the date of the
conveyance, as much so as North Water Street was its northern
boundary. And the plaintiff is carried by his deed to it not
because of the alluvial deposit, if any, between the waterline at
the time of the survey and plat and the line at the date of the
deed, having passed as appurtenant to the lot, but because one of
the calls given in the deed requires that the side lines should be
thus extended. Any alluvial accretions since the deed belong to the
plaintiff as owner of the adjoining land. Any past accretions
belonged to the then owner, and whoever sets up a title to them
must show a deed of the same as in the case of any other
description of land.
The case of
Lamb v. Rickets, 11 Ohio 311, exemplifies
the principle for which we are contending. The defendant had agreed
to convey a piece of land called the Hamlin lot, containing
forty-two acres more or less, and also two other small lots of ten
acres, with a proviso if the Hamlin lot and the two others
contained more than fifty-two acres the excess was reserved. The
defendant conveyed the Hamlin lot, and refused to convey the other
two. A bill was filed to compel a conveyance. The Hamlin lot was
bounded by one of its lines on the bank of the Tuscarawas River,
and had been originally conveyed to the defendant, and by him to
the plaintiff, as containing forty-two acres, more or less.
The defense set up to the bill was that before the defendant
conveyed the lot to the plaintiff, large accessions had been made
from the river to the lot, and that these alluvial formations made
up the quantity of fifty-two acres.
Page 59 U. S. 157
The plaintiff claimed that the quantity should be determined
according to the old boundary of the lot upon the bank of the
river, which would be but some forty-two acres. But the court held
that the question was not as the bank of the river was twenty-five
or thirty years ago, but as it was when the Hamlin tract was
conveyed to the plaintiff, and estimated the quantity of land
conveyed accordingly.
The case of
Giraud's Lessee v. Hughes, 1 Gill &
Johnson 249, asserts a similar principle. There Gist's inspection,
a grant as early as 1732, was bounded by one of its lines in the
waters of the Patapsco River, afterwards a basin of Baltimore; the
lines, however, were given in the grant by courses and distances,
and did not call for the river. Hughes held under this grant by
deed in 1782.
Before 1812, the waters of the Patapsco had gradually receded
and formed a body of firm land, which had been surveyed and
patented by the state to the plaintiff. The question was whether or
not Hughes was entitled to this alluvial deposit as the adjoining
owner to the river. It was not doubted by the counsel or court but
that if the grant of Gist's inspection had been bounded on the
river, this boundary of the tract would have included the land made
by the recession of the water, and the court even held that as the
original location of the tract extended into the river, it entitled
those holding under it to the land on the ground that the principle
governing these alluvial accretions gave them to the adjoining
owner. In other words, the description in the original grant gave,
in legal effect, to the grantee, a water boundary, and if so, the
boundary included the accretions.
The jury therefore in this case should have been directed to
inquire whether or not, at the time of the deed to the plaintiff,
lot No. 34 had a waterline upon the lake north of the north pier of
the Chicago harbor -- in other words, whether the line between that
lot and No. 35 struck the shore of the lake before it reached this
pier. If it did, then the question would properly arise in respect
to its right to a share of the alluvial accretions formed since
that period. If it did not, then no question of the kind could
arise in the case.
We think the court also erred in the rule laid down to govern
the jury in the division of the new-made land. That was the jury
should ascertain the extent of the waterline of 34 between the
piers and the point where the line dividing 34 and 35 touched the
water. They should also ascertain the extent of the waterline of
the fraction of land south of North Water Street and east of 35,
and also of 35 to the point dividing 34 and 35; they would then
have the plaintiffs' and the defendant's
Page 59 U. S. 158
front on the lake. They must then ascertain the front on the
lake shore as it at present exists and divide that into as many
equal parts as there are feet on the old shore from North Water
Street to the piers, and give to each of the parties as many of
these parts as he had feet on the old shore, and then draw a
straight line from the point of division on the old lake shore to
the point thus determined as the point of division on the present
one.
We do not perceive why North Water Street should have been
adopted as the northern limit upon the old shore as the basis in
making the division, as it appears from the evidence and maps that
the alluvial accretions extended much further north. The northern
limit on the old shore should have been carried as far as the
new-made land extended, as each riparian proprietor was entitled to
his proper share, and it was essential that the entire line be
regarded in order that each might obtain his proportional part.
Neither do we perceive any reason for excluding the pier shore of
the lake -- that is, the shore along the line of the piers -- from
measurement in ascertaining the extent of the newly made shore. If
we disregard the artificial construction which occasioned the
accretions, the lake there is as much new shore as any other
portion of it, and should have been taken into the estimate.
As no question was made below whether or not the alluvial
accretions in question were formed under such circumstances as gave
to adjoining owners a title to them, we do not intend to express
any opinion upon that question.
The judgment of the court below is reversed with directions
that a venire de novo issue.