McCulloch, J.,
(after stating the facts.) The first question presented is one of fact, whether at the time of the Government survey in 1847 the land in controversy was a portion of the bed of Walker’s Lake, or whether it was swamp land; for, if the former state of fact is found to have existed, then the title of the owners of adjoining lands extended to the center of the lake by virtue of their riparian rights as such owners; and, since the recession or drying up of the waters has left the land exposed, it belongs to them. See Rhodes v. Cissel, 82 Ark. 367, and cases therein cited.
Appellant was the plaintiff below, seeking to quiet her alleged title, and must succeed, if at all, upon the strength of 'her own title, and not upon the weakness of that of her adversaries. Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338. In other words, the burden of proof is upon her to show that the land in controversy was land, and not lake bed, at the time of the government survey.
In addition to that, the plats of the government survey and the field notes which accompany them show that these lands then constituted the bed of the lake, and were within the meandered lines of the lake. This establishes, prima facie, that the lands were a part of the lake bed, and the burden is upon the appellant to overcome it by proof to the contrary.
But, thus conceding the burden to be upon the appellant, the testimony which she has adduced convinces us that she is correct in her contention as to this question of fact, and that the land in controversy was swamp land at the time of the government survey, and was not in the bed of the lake. The surveyors made mistakes in relimiting the boundary lines of the lake, and included a large amount of low swampy land, which the waters of the lake did not cover. These mistakes were not unreasonable ones, and -do not demonstrate either fraud or gross carelessness on the part of the surveyors, for the evidence shows that there may have been grounds at that time .to believe that the meander line followed the bank of the lake. The intervening territory between the meander line and the bank of the lake was undoubtedly of that indeterminate character, low lands partly covered by water, about which the surveyors could reasonably have been mistaken, and which they may 'have concluded was the bed of a shallow part of the lake. There was a slash or low place along the meander line; and, as this may have been temporarily covered by water at the time, the surveyors followed its outer line, believing it to be the -shore line of the lake.
We are satisfied, however, that a mistake was made in establishing this line as the shore line of the lake. Out of the testimony of all the witnesses who testify from recollection as to the condition of the land and the boundaries of .the lake many years ago, the preponderance lies, we think, with those who say that the land in controversy was swamp land, and not lake bed. In addition to this, the condition in which the undisputed evidence shows the land to be at this day, and the character of the timber growing thereon, is convincing that it was not a portion of the lake in 1847. The present banks of the lake are well marked, and have not materially changed during the memory of those persons whose testimony on the subject preponderates. We will, therefore, .treat it as established that mistakes were made in survey, and that this land was in fact swamp land, and not lake bed. The real location of Walker’s Lake was and is far inside the meander lines run by the surveyors. At some points the bank of the lake is over a .mile from the surveyed meander line.
But, conceding this to be true, the fact remains .that a meander line was surveyed, which the field notes show was intended to indicate the shore line of the lake. A body of water constituting a non-navigable lake existed then and still exists within the meander line, though a considerable distance inward from it. The plats of this survey were filed in the General Land Office of the United States, and were accepted and approved by that department of- the Government as correct. In running the meander lines, the surrounding sections and parts of sections were necessarily made fractional, and, under the Swamp Land Act of 1850, surveyed land in the townships surrounding the lake were selected by the State. The selections were approved by the Secretary of the Interior, and patents were issued to the State conveying the land by description “according to the official plats of the survey returned to the General Land Office of the Surveyor General.” The State of Arkansas has, from -time to time, sold to individuals the surveyed lands and conveyed them by descriptions according to .the plats.
Neither the Land Department of the United States nor of the State of Arkansas has ever questioned the correctness of the survey, but, on the contrary, they have up to the present time treated and do now treat them as correct; if we may view in that light a failure to take any steps looking to a correction. Can an individual question the correctness of the surveys when neither the general government nor the State government has ever done so? Can an individual acquire and assert rights in these unsurveyed lands which the Government has never asserted against the riparian rights of the adjoining owners?
The Supreme Court of the United States, as early as the case of Spencer v. Lapsley, 20 How. 264, decided that “the issue of the grant or patent conveys the title, and questions of fraud or irregularity, or excess in the survey cannot be raised by other parties than the Government.”
Mr. Justice Lamar, in delivering the opinion of the court in Cragin v. Powell, 128 U. S. 691, said: “That the power to make and correct surveys of the public land belongs to the political department of the government, and that, whilst the lands are subject to the supervision of the General Land Office, the decisions of -that bureau in all such cases, like that of other special tribunals upon matters within their exclusive jurisdiction, are unassailable by the courts, except by a direct proceeding; and that the latter have no concurrent or original power to make similar corrections, if not elementary principles of our land law, is settled by such a mass of decisions of this court that its mere statement is sufficient. The reason of the rule, as stated by Justice Catron in the case of Haydel v. Dufresne, 17 How. 23, is that ‘great confusion and litigation would ensue if the judicial tribunals, State and Federal, were permitted to interfere and overthrow the public surveys on no other ground than an opinion that they could have the work in the field done and divisions more equitably made than the department of public lands could do.’ ”
In Russell v. Maxwell Land Grant Co., 158 U. S. 253, Mr. Justice Brewer, speaking for the court, said: “In the nature of things, a survey made by the government must be held conclusive against collateral attack in controversies between individuals. There must be some tribunal to which final jurisdiction is given in respect to the matter of surveys, and no other tribunal is so competent to deal with the matter as the land department. None other is named in the statutes. If in every controversy between neighbors the accuracy of a survey made by the government were open to question, interminable confusion would ensue.”
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McCulloch, J.,
(after stating the facts.) The first question presented is one of fact, whether at the time of the Government survey in 1847 the land in controversy was a portion of the bed of Walker’s Lake, or whether it was swamp land; for, if the former state of fact is found to have existed, then the title of the owners of adjoining lands extended to the center of the lake by virtue of their riparian rights as such owners; and, since the recession or drying up of the waters has left the land exposed, it belongs to them. See Rhodes v. Cissel, 82 Ark. 367, and cases therein cited.
Appellant was the plaintiff below, seeking to quiet her alleged title, and must succeed, if at all, upon the strength of 'her own title, and not upon the weakness of that of her adversaries. Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338. In other words, the burden of proof is upon her to show that the land in controversy was land, and not lake bed, at the time of the government survey.
In addition to that, the plats of the government survey and the field notes which accompany them show that these lands then constituted the bed of the lake, and were within the meandered lines of the lake. This establishes, prima facie, that the lands were a part of the lake bed, and the burden is upon the appellant to overcome it by proof to the contrary.
But, thus conceding the burden to be upon the appellant, the testimony which she has adduced convinces us that she is correct in her contention as to this question of fact, and that the land in controversy was swamp land at the time of the government survey, and was not in the bed of the lake. The surveyors made mistakes in relimiting the boundary lines of the lake, and included a large amount of low swampy land, which the waters of the lake did not cover. These mistakes were not unreasonable ones, and -do not demonstrate either fraud or gross carelessness on the part of the surveyors, for the evidence shows that there may have been grounds at that time .to believe that the meander line followed the bank of the lake. The intervening territory between the meander line and the bank of the lake was undoubtedly of that indeterminate character, low lands partly covered by water, about which the surveyors could reasonably have been mistaken, and which they may 'have concluded was the bed of a shallow part of the lake. There was a slash or low place along the meander line; and, as this may have been temporarily covered by water at the time, the surveyors followed its outer line, believing it to be the -shore line of the lake.
We are satisfied, however, that a mistake was made in establishing this line as the shore line of the lake. Out of the testimony of all the witnesses who testify from recollection as to the condition of the land and the boundaries of .the lake many years ago, the preponderance lies, we think, with those who say that the land in controversy was swamp land, and not lake bed. In addition to this, the condition in which the undisputed evidence shows the land to be at this day, and the character of the timber growing thereon, is convincing that it was not a portion of the lake in 1847. The present banks of the lake are well marked, and have not materially changed during the memory of those persons whose testimony on the subject preponderates. We will, therefore, .treat it as established that mistakes were made in survey, and that this land was in fact swamp land, and not lake bed. The real location of Walker’s Lake was and is far inside the meander lines run by the surveyors. At some points the bank of the lake is over a .mile from the surveyed meander line.
But, conceding this to be true, the fact remains .that a meander line was surveyed, which the field notes show was intended to indicate the shore line of the lake. A body of water constituting a non-navigable lake existed then and still exists within the meander line, though a considerable distance inward from it. The plats of this survey were filed in the General Land Office of the United States, and were accepted and approved by that department of- the Government as correct. In running the meander lines, the surrounding sections and parts of sections were necessarily made fractional, and, under the Swamp Land Act of 1850, surveyed land in the townships surrounding the lake were selected by the State. The selections were approved by the Secretary of the Interior, and patents were issued to the State conveying the land by description “according to the official plats of the survey returned to the General Land Office of the Surveyor General.” The State of Arkansas has, from -time to time, sold to individuals the surveyed lands and conveyed them by descriptions according to .the plats.
Neither the Land Department of the United States nor of the State of Arkansas has ever questioned the correctness of the survey, but, on the contrary, they have up to the present time treated and do now treat them as correct; if we may view in that light a failure to take any steps looking to a correction. Can an individual question the correctness of the surveys when neither the general government nor the State government has ever done so? Can an individual acquire and assert rights in these unsurveyed lands which the Government has never asserted against the riparian rights of the adjoining owners?
The Supreme Court of the United States, as early as the case of Spencer v. Lapsley, 20 How. 264, decided that “the issue of the grant or patent conveys the title, and questions of fraud or irregularity, or excess in the survey cannot be raised by other parties than the Government.”
Mr. Justice Lamar, in delivering the opinion of the court in Cragin v. Powell, 128 U. S. 691, said: “That the power to make and correct surveys of the public land belongs to the political department of the government, and that, whilst the lands are subject to the supervision of the General Land Office, the decisions of -that bureau in all such cases, like that of other special tribunals upon matters within their exclusive jurisdiction, are unassailable by the courts, except by a direct proceeding; and that the latter have no concurrent or original power to make similar corrections, if not elementary principles of our land law, is settled by such a mass of decisions of this court that its mere statement is sufficient. The reason of the rule, as stated by Justice Catron in the case of Haydel v. Dufresne, 17 How. 23, is that ‘great confusion and litigation would ensue if the judicial tribunals, State and Federal, were permitted to interfere and overthrow the public surveys on no other ground than an opinion that they could have the work in the field done and divisions more equitably made than the department of public lands could do.’ ”
In Russell v. Maxwell Land Grant Co., 158 U. S. 253, Mr. Justice Brewer, speaking for the court, said: “In the nature of things, a survey made by the government must be held conclusive against collateral attack in controversies between individuals. There must be some tribunal to which final jurisdiction is given in respect to the matter of surveys, and no other tribunal is so competent to deal with the matter as the land department. None other is named in the statutes. If in every controversy between neighbors the accuracy of a survey made by the government were open to question, interminable confusion would ensue.”
The same learned Judge, in delivering the opinion of the court in Whittaker v. McBride, 197 U. S. 510, said: “The official surveys made by the government are not open to collateral attack in an action at law between private parties.”
Mr. Farnham, in his work-o'n Water and Water Rights (vol. 2, § 422), states the same doctrine, as follows:
“Where a patent issues for a fractional lot appearing by the plat of the United States survey to be bounded on one side by a meandered lake, the patent is not void so far as it purports to convey the land under the waterj though it was an error in the surveyor to treat the tract covered by water as a lake to be meandered, instead of land to.be surveyed. Conceding the patent to 'that extent to be void, it can be avoided only by the United States in a suit to which the patentee is a party. The land passed, and a private individual cannot complain.”
The following decisions of the Supreme Court of the United States announce in effect the same principle: Michigan Land & Lumber Co. v. Rust, 168 U. S. 599; Humbird v. Avery, 195 U. S. 480; Oregon v. Hitchcock, 202 U. S. 60.
•The decisions of this court in Smith v. Hollis, 46 Ark. 17, and Williamson v. Baugh, 71 Ark. 491, are based upon the same principle. The court in these cases held that the decision of the Secretary of the Interior in determining whether or not certain ■lands came within the terms of the Swamp Land Grant was, in the absence of fraud, conclusive, and could not be overturned in a collateral proceeding.
The legal effect of the patents to the State of the fractional sections and parts of sections surrounding the meandered lines of the lake, according to the official plats of the public survey, was to convey all riparian rights, and by virtue thereof to vest prima facie title to the bed of the lake, as shown on the plats, from meander shore lines to center. The conveyances executed by the State in turn to its grantees had the same effect. Hardin v. Jordan, 140 U. S. 371; Mitchell v. Smale, 140 U. S. 406.
If title to the lands in controversy has not passed out of the United States to the State and its grantees in that way, it has never passed at all. Though the S'wamp Land Act has been held to be a grant in praesenti, the legal title did not pass until the lands were duly selected as such, and the patents were delivered. Rogers Locomotive Machine Works v. American Emigrant Co., 164 U. S. 559; Michigan Land & Lumber Co. v. Rust, 168 U. S. 589; Brown v. Hitchcock, 173 U. S. 473; Ogden v. Buckley, 116 Iowa, 352; Funston v. Metcalf, 40 Miss. 504.
These lands have never been selected or patented at all, unless the patents to the adjoining fractional sections embraced them.
The State of Arkansas, by the compromise settlement contract entered into with the United States, which was approved by act of the General Assembly of Arkansas, March 10, 1897, and by act of Congress, April 29, 1898, expressly relinquished her claim to any unpatented swamp land.
So the title to these lands is either in the owners of the adjoining lands by virtue of their riparian rights, according to the legal purport of the patents and subsequent conveyances, or it remains in the United States government. Until the government elects to correct the mistakes in the original survey and assert claim to the lands, no one can complain or dispute the title of the holders of the prima facie title. Schlosser v. Cruikshank, 96 Iowa, 414; Ogden v. Buckley, 116 Iowa, 352; Minnesota Land & Investment Co. v. Davis, 40 Minn. 455; Lamphrey v. Mead, 54 Minn. 290; Whittaker v. McBride, 197 U. S. 510.
Opinion delivered November 9, 1908. Appellant in no event has any shadow of title, for, if the State took title as riparian owner under the patent to the adjoining land, she in like manner conveyed it to her grantees, and had no title to donate to the Levee Board. Towell v. Etter, 69 Ark. 34; Jeffries v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518.
Whether or. not the State can now correct any mistake as to the quantity of land conveyed by her patent to individuals is not presented in this case, and we therefore refrain from any discussion on that point.
The case of Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, has no application to the facts of the present case, and is not controlling. In that case the meander line was run by the government surveyors along the bank of a stream, and title was claimed under a patent of lands bordering on this meandered line by virtue of riparian rights -to lands lying beyond the body of water meandered. This court refused to sustain the claim, holding that no title passed under the patent to lands lying beyond the meandered stream. Neither do Horn v. Smith, 159 U. S. 40, Niles v. Cedar Point Club, 175 U. S. 300, nor French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, have any bearing on the present case. They are cited in the Bigelow case, and the facts of each bring them all within the same class of cases, but they have no controlling force here, because of the difference in the facts.
We conclude that the decree of the chancellor is correct, and the same is in all things affirmed.