1. In ejectment for land bounded by a river which has changed
its bed and formed a new channel since the date of the survey, it
is proper for the court to let the jury find whether the land in
controversy is within the tract surveyed and granted.
2. The jury is bound to find the river boundary to be where the
plat of the survey and the field notes have designated it, though
in fact the river had at the time of the survey another channel
through which its waters generally flowed.
3. It is not material in such a case where the most usual
channel of the river was, nor whether the channel recognized in the
survey and field notes was natural or artificial, constant or
occasional.
4. The public, by the act of the proper officer, had a right to
fix and declare the place of the river for the purposes of a survey
and sale of the lands, and a grantee cannot contradict the survey
and claim be yond it by showing that the true channel of the river
was really at another place.
5. This Court will not decide what are the rights of lake shore
proprietors whose fronts are swept away by the currents, nor to
what extent they still own the lands covered with water, except in
the case of one who proves that he owned the land before the
decretion took place. Until the party shows his ownership of the
shore, all inquiry respecting his rights in or under the waters
adjoining is speculative and useless.
This was ejectment in the circuit court brought by George C.
Bates against the Illinois Central Railroad company for a parcel of
land called the "Sand Bar," now covered with water, and which the
plaintiff alleged in his declaration was a part of the north
fraction of section 10, town 9, in the City of Chicago.
The plaintiff's title to the north fraction of section ten was
not contested. The section was surveyed by public authority in
1821. This fraction was preempted in 1831 by Robert A. Kinzie, to
whom a patent for it according to the survey was issued in 1837.
The plaintiff held Kinzie's title.
Page 66 U. S. 205
But the defendant denied that the Sand Bar in dispute was within
the proper limits of the plaintiff's fraction. The Chicago River is
one of the boundaries called for by the survey and patent. Great
changes have taken place in the bed and mouth of the river during
thirty years. What these changes were and when they took place were
subjects on which must evidence was given by both parties. If the
bed and mouth of the river were at the place where they are laid
down in the plat of the survey and mentioned in the field notes,
then the plaintiff's tract did not include the Sand Bar for which
he brought suit. The circuit court left it to the jury to say, as
matter of fact, what were the true boundaries of the tract and
whether the Sand Bar was or was not included by them.
Previous to the erection of the piers in Chicago harbor, which
commenced in 1833, the land in controversy was dry, but afterwards
the currents created by those piers washed it away, and it
gradually sunk beneath the waters of the lake. The plaintiff
asserted as matter of law that his title was not changed or
divested by that fact. The court charged the jury that, assuming
the plaintiff to be the owner of the land when it was above water,
if he suffered it to be gradually washed away until it was entirely
covered, and then permitted it to remain an open roadstead for more
than seven years, the title became vested in the public, and he
could not recover.
To these rulings of the circuit court exceptions were taken, and
the verdict and judgment being for the defendant, the plaintiff
brought the cause up to the Supreme Court by writ of error.
Upon the point last mentioned -- namely the destruction of the
plaintiff's title by the action of the water and by his failure to
reclaim it from the bottom of the lake for more than seven years --
the arguments here were very elaborate. But it will be seen by the
opinion of MR. JUSTICE CATRON that the cause turned entirely on the
question of boundary, which was submitted to the jury and found
against the plaintiff on evidence regarded as conclusive.
Page 66 U. S. 206
MR. JUSTICE CATRON.
This cause comes here by writ of error to the Circuit Court of
the United States for the Northern District of Illinois. The
railroad company is sued in ejectment by Kinzie's representatives
for land lying under water at the City of Chicago, the end of the
road running into Lake Michigan. The controversy depends on the
following charge of the court to the jury:
"By the Act of Congress of July 1, 1836, entries of the
character of Kinzie's were confirmed, and patents were to be issued
therefor, as in other cases. A patent accordingly issued to Kinzie
on the 9th of March, 1837. There can be no reasonable doubt, I
think, that
this title, thus perfected, related back to the
entry of Kinzie in May, 1831, and the law gave it effect from
that date precisely as if it had been made in the proper land
office."
"The land had been surveyed in 1821, and on the plat of the
government survey the north fraction of section 10 is represented
as having the Chicago River on the south and Lake Michigan on the
east. The river is represented as flowing out in
nearly a
straight line into the lake. The fact seems to be that from
1816 to 1821, the river, instead of flowing out, as represented on
the survey, just before it entered the lake, made a sharp curve to
the south, and thereby formed a sand bar or spit of land between it
and the lake, which has given rise to this controversy. This sand
bar existed in 1821, but it is not noticed in the plat of the
survey. In 1821, the river seems to have run into the lake,
according to the plat, but it is said this was in consequence of an
artificial channel cut through the sand bar. This channel was
stopped up in the winter of 1821-1822, but was opened again in the
spring of 1822 by a freshet, and water continued to flow out there
in the summer of 1822; but during 1821 and 1822, more or less water
passed from what had been the mouth prior to 1821. After 1822, the
direct channel was stopped up, and, with an occasional exception,
caused by the act of man or by a freshet, the river flowed
Page 66 U. S. 207
into the lake up to 1833 in its original and natural bed. In
1833 and in 1834, the government constructed piers across the sand
bar, and the river from that time has flowed through those piers,
the old channel south of the pier having ceased to bear the waters
to the lake because the south pier was run across it as well as
across the sand bar. In the construction of the piers, the
government of the United States did not purchase or condemn the
land, but Kinzie seems to have acquiesced in the act, and indeed,
as already stated, it was not till 1836 that Kinzie's title was
confirmed."
An exception was taken to the concluding part of the charge,
which is as follows:
"Under this state of facts, the substantial truths of which are
not denied, the land of Kinzie, covered by his entry and purchase,
would be the tract within the following boundaries, as they existed
at the time of the entry, there being no question made but that the
government plats, by which sales were made, show that the whole
land north of the river and south of the north line of the fraction
was sold as one parcel, and are the north line and west line of
fractional section 10, according to the public survey, and the
Chicago River and Lake Michigan, as they existed -- that is, it
would include all the dry, firm land there was at that time between
the west line of the section and the lake, and the north line of
the section and the river. The river, the lake, and the two lines
of the fractional section 10 constituted the boundaries. Whether
the land in controversy was within these boundaries is a fact to be
found by the jury, depending upon the evidence before them."
The facts as recited were not disputed; nor is any exception
taken to the statement made preceding the court's conclusion on the
law and facts of the case.
The land trespassed on and sued for, as described in the
plaintiff's declaration, lies south of the south pier, is now
covered with water, and a part of the bottom of the lake, on which
land the end of the railroad is located. It was formerly overlaid
with the sand bar, which was swept away by the current the piers
created. It is situated outside of fractional section ten, as its
boundary was described by the judge to the jury. And this raises
the question by what rule is the public
Page 66 U. S. 208
survey to which the patent refers for identity to be construed?
The land granted is 102 29/100 acres, lying north of the Chicago
River, bounded by it on the south and by the lake on the east. The
mouth of the river being found, establishes the southeast corner of
the tract. The plat of the survey and a call for the mouth of the
river in the field notes show that the survey made in 1821
recognized the entrance of the river into the lake through the sand
bar in an almost direct line easterly, disregarding the channel
west of the sand bar, where the river most usually flowed before
the piers were erected. It is immaterial where the most usual mouth
of the river was in 1821, nor whether this northern mouth was
occasional, or the flow of the water only temporary at particular
times, and this flow produced to some extent by artificial means,
by a cut through the bar, leaving the water to wash out an enlarged
channel in seasons of freshets. The public had the option to
declare the true mouth of the river, for the purposes of a survey
and sale of the public land. And the court below properly left it
to the jury to find whether land on which the railroad lies is
within the boundary of the tract surveyed and granted. According to
the judge's construction of the plat and calls and the patent
bounded on the survey, the jury was bound to find for the
defendant, and therefore this ruling was conclusive of the
controversy.
In regard to the matter, so much and so ably discussed in the
argument here, as to the rights of proprietors on the lake shore,
where their fronts were swept away by currents, and to what extent
they still owned the lands covered with water, undoubtedly theirs
before the decrease took place, we do not feel ourselves called on
to decide, because this plaintiff was not the owner of the land
sued for before the decrease occurred, and could have no
proprietary rights in the bottom of the lake. Before a proprietor
can set up his claim to accretions and the like, he must first show
that he owns the shore, and if he fail first to establish his
ownership, judicial inquiry respecting his rights in or under the
waters adjoining are abstractions, and useless.
Judgment of the circuit court affirmed.
