Gilfillan, C. J.
The action is for partition. The complaint claims that the plaintiffs and the defendants Mead, Reilly, and Metcalf are the owners, as tenants in common, of the land, and the other defendants are joined to determine their claim of title. The other defendants who answer claim under the railroad land grant to the Territory in 1857. The lands in township No. 28 N., of range No. 22 W. of the fourth P. M., were surveyed in 1858, the subdivision lines being run in September of that year. The map or plat of the survey was filed in the office of the surveyor general, and was by him examined and approved February 27, 1854. In May, 1855, patents issued for lot 9, section 4, and lot 9, section 5, and in March, 1855, a patent issued for lots 4 and 8, section 5. The plaintiffs and defendants Mead, Reilly, and Metcalf claim under these patents.
[297] On the map or plat was a tract marked “Lake,” on which the lots so patented abutted. The following rough diagram shows approximately the position of the lots with reference to the “lake.”
All the lands surrounding the lake were surveyed, and appear platted as fractional lots. The controversy is over the bed of what is designated “Lake” in front of the patented lots, the plaintiffs claiming that, according to the law as laid down in Hardin v. Jordan, 140 U. S. 371, (11 Sup. Ct. Rep. 808, 838;) Mitchell v. Smale, 140 U. S. [298]*298406, (11 Sup. Ct. Rep. 819, 840;) and Lamprey v. State, 52 Minn. 181, (53 N. W. Rep. 1139,) the title to the bed of the lake in front of those lots passed by the patents, the defendants claiming under the land grant that by reason of the facts which they offered to prove it remained in the United States, and passed by the land grant to which those defendants have succeeded.
On the trial the plaintiffs introduced the plat and patents and deeds passing the titles derived under the patents to them and the defendants Mead, Reilly, and Metcalf, and rested. The other defendants made certain offers of evidence, which, on plaintiffs objecting, were overruled. These offers and the rulings thereon present the questions in the case. The offers are too long to be quoted in this opinion, but they included a survey of the land covered by the 'lake,” made and approved in 1861, and facts which it is claimed would establish, not that when the original survey was made the water did not cover the tract marked “lake,” but that it ought to have been surveyed as land, and not to have been meandered as a lake. Conceding that the water was there at the time of the survey, and presented the question whether for the purpose of the survey it ought to be regarded as a lake or as land, the offers are, in effect, to impeach the survey by showing that it was error or mistake to regard it as a lake. The proposition suggests a question of great practical importance. It is a serious matter, in this state at least, where, as is of common knowledge, what was undoubted lake ten years ago might five years later be only marsh, and to-day dry land, if, after the lapse of forty years, a United States survey representing a tract of water as meandered lake, and according to which the government has conveyed the abutting land, can be impeached, and the rights of the patentees unseated. But the question is not presented in this case for solution. Of course, so long as the government had not conveyed any of the lands abutting on the lake, it could correct the survey, survey the tract under the water as land, and convey it as such. And it may be conceded (though it is by no means clear) that the government is not bound by an erroneous or mistaken survey, even after it has conveyed the land according to it; but it cannot correct such erroneous survey so as to defeat or injuriously affect the rights of its patentees by any ex parte acts, or in any way except by a proceeding to which such patentees [299] are parties, and in which they have an opportunity to be heard. It has no more right to limit or diminish the effect of its past grants by its own acts than has a private grantor. Lindsay v. Hawes, 2 Black, 554, furnishes an instance in which, rights having been acquired under an erroneous survey, it was held that a subsequent correct survey did not defeat the rights so acquired. It follows that the survey of 1861 does not affect the case.
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Gilfillan, C. J.
The action is for partition. The complaint claims that the plaintiffs and the defendants Mead, Reilly, and Metcalf are the owners, as tenants in common, of the land, and the other defendants are joined to determine their claim of title. The other defendants who answer claim under the railroad land grant to the Territory in 1857. The lands in township No. 28 N., of range No. 22 W. of the fourth P. M., were surveyed in 1858, the subdivision lines being run in September of that year. The map or plat of the survey was filed in the office of the surveyor general, and was by him examined and approved February 27, 1854. In May, 1855, patents issued for lot 9, section 4, and lot 9, section 5, and in March, 1855, a patent issued for lots 4 and 8, section 5. The plaintiffs and defendants Mead, Reilly, and Metcalf claim under these patents.
[297] On the map or plat was a tract marked “Lake,” on which the lots so patented abutted. The following rough diagram shows approximately the position of the lots with reference to the “lake.”
All the lands surrounding the lake were surveyed, and appear platted as fractional lots. The controversy is over the bed of what is designated “Lake” in front of the patented lots, the plaintiffs claiming that, according to the law as laid down in Hardin v. Jordan, 140 U. S. 371, (11 Sup. Ct. Rep. 808, 838;) Mitchell v. Smale, 140 U. S. [298]*298406, (11 Sup. Ct. Rep. 819, 840;) and Lamprey v. State, 52 Minn. 181, (53 N. W. Rep. 1139,) the title to the bed of the lake in front of those lots passed by the patents, the defendants claiming under the land grant that by reason of the facts which they offered to prove it remained in the United States, and passed by the land grant to which those defendants have succeeded.
On the trial the plaintiffs introduced the plat and patents and deeds passing the titles derived under the patents to them and the defendants Mead, Reilly, and Metcalf, and rested. The other defendants made certain offers of evidence, which, on plaintiffs objecting, were overruled. These offers and the rulings thereon present the questions in the case. The offers are too long to be quoted in this opinion, but they included a survey of the land covered by the 'lake,” made and approved in 1861, and facts which it is claimed would establish, not that when the original survey was made the water did not cover the tract marked “lake,” but that it ought to have been surveyed as land, and not to have been meandered as a lake. Conceding that the water was there at the time of the survey, and presented the question whether for the purpose of the survey it ought to be regarded as a lake or as land, the offers are, in effect, to impeach the survey by showing that it was error or mistake to regard it as a lake. The proposition suggests a question of great practical importance. It is a serious matter, in this state at least, where, as is of common knowledge, what was undoubted lake ten years ago might five years later be only marsh, and to-day dry land, if, after the lapse of forty years, a United States survey representing a tract of water as meandered lake, and according to which the government has conveyed the abutting land, can be impeached, and the rights of the patentees unseated. But the question is not presented in this case for solution. Of course, so long as the government had not conveyed any of the lands abutting on the lake, it could correct the survey, survey the tract under the water as land, and convey it as such. And it may be conceded (though it is by no means clear) that the government is not bound by an erroneous or mistaken survey, even after it has conveyed the land according to it; but it cannot correct such erroneous survey so as to defeat or injuriously affect the rights of its patentees by any ex parte acts, or in any way except by a proceeding to which such patentees [299] are parties, and in which they have an opportunity to be heard. It has no more right to limit or diminish the effect of its past grants by its own acts than has a private grantor. Lindsay v. Hawes, 2 Black, 554, furnishes an instance in which, rights having been acquired under an erroneous survey, it was held that a subsequent correct survey did not defeat the rights so acquired. It follows that the survey of 1861 does not affect the case.
The patents conveyed- the fractional lots according to the survey as it was represented by the plat. The latter was therefore part of the patents as much as though it were fully set forth in them. On their face they transferred to the patentees the right to the land under the water, not as defendants seem to argue, if appurtenant and as appurtenant to the shore land, but they took the fee, (a fee cannot be appurtenant,) because, when land is bounded in the conveyance by a nonnavigable lake or river, it is presumed the parties intend the center, and not the shore, line to be the boundary. They may limit the grant to the shore line if that intention be sufficiently expressed. The patents, even though it could be proved that the survey was a mistake, and that the determination of the government surveyors and officials that the water on the land when the survey was made constituted a lake to be meandered was erroneous, were not void so far as they purported to convey the land under water. At worst they were only, to that extent, voidable at the instance of the government, in proper proceedings for reformation of the patents. White v. Burnley, 20 How. 235; Spencer v. Lopsley, Id. 264. The ease is not one where a boundary given is an impossible one; where the monument given as marking it does not exist, or cannot be found. In such a case the boundary or monument must be disregarded, and the extent of the grant ascertained by other means, if the conveying instrument furnish them. There might be a case where the land is in terms bounded by a lake or river, and no lake or river is in fact to be found where the granting instrument indicates it to be. There might, in such a case, be a question how far the court will go to find such boundary before resorting to other means to define and locate the grant. Such a case was presented in Whitney v. Detroit Lumber Co., 78 Wis. 240, (47 N. W. Rep. 425.) In that case a fractional lot was wholly in a quarter of a quarter section, if full, and appeared by the plat of the survey to be bounded [300] by a lake partly on that forty-acre tract. Tlie decision was, in' effect, that the court would not go, to find the lake as a boundary and locate the land, beyond the limits of the governmental subdivision of which the lot purported to be a fraction. Such- is not this case. In this case the boundary given was where the survey-indicated, the only claim being that it was mistake or error in the-survey to treat the water as lake. The patents being at worst only in part voidable, they passed the land, and, if the government choose to acquiesce in and abide by them, no one else can complain. If a patent issue to A., when it ought to have issued to B.,. or if a patent issued to A. prejudice the existing rights of B., the latter may have his remedy against A.; but one who has no interest which is affected by the patent cannot question it. Minnesota Land & I. Co. v. Davis, 40 Minn. 455, (42 N. W. Rep. 299.) The defendants do not even stand in the position of one acquiring a subsequent title or claim of title from the United States. The grant of 1857 attached to no land which, when the lines of railroad were definitely located, had been otherwise appropriated by the United States. The decisions are uniform that land, the claim to which, though ill founded,, was sub judice,—that is, awaiting determination,—was excepted from the operation of the grant, because otherwise appropriated within the meaning of the act. An outstanding patent, though, voidable, is an appropriation, within the reason of that rule.
(Opinion published 65 N. W. Rep. 1132.)
Order affirmed.