LTTRTON, Circuit Judge,
after making the foregoing statement of facts, delivered the opinion of the court.
By the provisions for the survey of public lands now found in sections 2395 and 2396, Rev. St., it is required that such lands shall be surveyed into townships six miles square, and each in turn subdivided into 36 sections of a mile square, except where the line of an Indian reservation, or of tracts of land heretofore surveyed or patented, or the course of navigable rivers, may render this impracticable; and in that case this rule must be departed from no further than such particular circumstances require. The patents to Margaret Bailey are for fractional sections. The boundary lines are not set out in tbe patents, but reference is made to tbe official plat of the survey of said lands for identification of the land granted, thereby adopting tbe plat as a part of the instrument. Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. Ct. 808, 838. When we refer to the plat and field notes, we find that all the lines of each fractional section are straight, except the line bordering the swamp or marsh, laid down upon one plat as “a flag marsh,” and upon another as “impassable marsh and water.” The straight. [50]*50lines of the sections are not continued into or across this marsh, but stop at the margin thereof. Beyond this marsh, and adjoining the open waters of Lake Erie, there was a long, low, and narrow sandy ridge, broken at points by shallow water channels. These small areas of dry land were separately conveyed and platted as additional fractional sections. Along the southwestern border or margin of this marsh, the plat shows that a line was meandered, and the question is, whether this line meandered along the water line of this marsh is the boundary line of,the fractional sections bordered on said marsh. In view of the form of title granted to Margaret Bailey, we are called upon to inquire and determine the effect of that title in reference to this flag marsh, upon which her fractional sections meander. Thé long and undisputable practice of the government has been to measure the price of public lands, when patented, by the quantity of upland granted, and to require no payment for lands covered by the waters of streams or lakes. For the purpose of ascertaining the quantity of upland to be paid for, a line meandering the margin of such waters is run, and, where this is the purpose of running such a meandering line, it is not regarded as in any sense a boundary, but as only pointing out the sinuosities of the bank, for the purpose of arriving at the area of land to be paid for. Railroad Co. v. Schurmeir, 7 Wall. 272; Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. Ct. 808, 838; Horne v. Smith, 159 U. S. 40-43, 15 Sup. Ct. 988.
As we understand it, the contention of the appellant is that this meander line, following the southerly water line of the marsh, was not run as a boundary line, and that, if the marsh, under the evidence, was a part of Lake Erie, her boundary is the shore line of the lake proper, and, if that shore line has receded, her boundary has followed the retreating shore, giving to her, under the doctrine of reliction, the land thus gained. On the other hand, her contention is that, if the marsh was not a part of the lake, but was a mere pond, marsh, or other shallow nonnavigable body of water, her boundary should be projected by extension of the side lines of each fractional section into said shallow pond or marsh, so as to complete each section as required by the law requiring the subdivision of each township into 36 sections of 640 acres each.
It has been long settled that government grants for lands bordering upon navigable waters extend only to high-water mark. The title to the shore, and to the lands under such water, is in the state within which such waters are situated, as an incident of the sovereignty of the state, and is held by the state in trust for the public purposes of navigation. The United States has never had title to submerged lands under navigable waters, and its grants could not, therefore, be held as conveying them to their patentees. Pollard v. Hagan, 3 How. 212; McCready v. Virginia, 94 U. S. 394; Webber v. Commissioners, 18 Wall. 57; Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. Ct. 808, 838; Scranton v. Wheeler, 16 U. S. App. 152, 6 C. C. A. 585, and 57 Fed. 803. It would therefore follow that, if this “flag marsh,” shown on the plats of Ambrose Rice, was then a part of Lake Erie proper, the submerged lands would not be subject to grant by the United States, and that the. title of the Cedar Point Club would fail, and this without [51]*51regard to the goodness or badness of the title claimed under the doctrine of reliction by the appellant. But that marsh, under the stipulation as to the facts, cannot be regarded as a part of Lake; Erie. The-waters of that lake did not permanently submerge the lands described as “flag marsh,” or “impassable marsh and water.” In times of heavy gales the marsh was subject to temporary inundation, but otherwise the wa ter, which stood or flowed over or through it, seems to have been the mere drainage from the higher lands adjoining, which found its way over these low lands to the lake. At the time of Bice's survey there was an unusual amount of water standing or flowing over the disputed land, and this may account for his failure to survey and plat it When Marsion made iris survey, in 1881, much of the marsh was dry enough for pasture purposes, and much was capable1 of yielding harvests of coarse hay, and all, or nearly all, was covered with grass, wild rice, and other products of such swampy land. Ata still later period it is shown that an even more favorable condition for pastoral purposes existed, due to unusual droughts occurring in 1893, 1891, and 1895. While, under the stipulation as to the facts, we must regard the condition of the marsh at the time of Rice’s survey as exceptional, we have no such liberty in regard to its condition when Mars ton made his survey. We can, therefore, find no evidence of any such general and continuous lowering of the level of the water in the lain1 as would, by (he doctrine of reliction, give to a riparian proprietor the laud gained between an old and new shore line.
The decision of the supreme court of Ohio in James v. Howell, 41 Ohio 8t. 696, can have no effect as res judicata, because it was not a suit between the parties to this record. That was a controversy between James, a predecessor in title to the appellant, and Howell, the patentee of one of the so-called “sandy islands” shown on Rice’s plat. James claimed then, as does his successor in title now, that the boundary of the Margaret Bariev patents was the open water of the lake, which would thus include1 Howell’s island. Howell’s defense seems to have been — First, tha Í. this marsh was a part of the lake proper, and that his patent was for an island separated from the shore of this' lake by this marsh; second, that the meander line run by Rice on the border of this marsh was run as a boundary line, and therefore the grants to her could not, under any circumstances, convey land not within her boundaries. The case was decided for Howell upon both grounds. So far as it was a judgment upon facts, it is of no force or effect upon a different record and between different parties. The conclusion of that court upon the evidence relating to the character of this marsh was thus stated by the court:
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LTTRTON, Circuit Judge,
after making the foregoing statement of facts, delivered the opinion of the court.
By the provisions for the survey of public lands now found in sections 2395 and 2396, Rev. St., it is required that such lands shall be surveyed into townships six miles square, and each in turn subdivided into 36 sections of a mile square, except where the line of an Indian reservation, or of tracts of land heretofore surveyed or patented, or the course of navigable rivers, may render this impracticable; and in that case this rule must be departed from no further than such particular circumstances require. The patents to Margaret Bailey are for fractional sections. The boundary lines are not set out in tbe patents, but reference is made to tbe official plat of the survey of said lands for identification of the land granted, thereby adopting tbe plat as a part of the instrument. Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. Ct. 808, 838. When we refer to the plat and field notes, we find that all the lines of each fractional section are straight, except the line bordering the swamp or marsh, laid down upon one plat as “a flag marsh,” and upon another as “impassable marsh and water.” The straight. [50]*50lines of the sections are not continued into or across this marsh, but stop at the margin thereof. Beyond this marsh, and adjoining the open waters of Lake Erie, there was a long, low, and narrow sandy ridge, broken at points by shallow water channels. These small areas of dry land were separately conveyed and platted as additional fractional sections. Along the southwestern border or margin of this marsh, the plat shows that a line was meandered, and the question is, whether this line meandered along the water line of this marsh is the boundary line of,the fractional sections bordered on said marsh. In view of the form of title granted to Margaret Bailey, we are called upon to inquire and determine the effect of that title in reference to this flag marsh, upon which her fractional sections meander. Thé long and undisputable practice of the government has been to measure the price of public lands, when patented, by the quantity of upland granted, and to require no payment for lands covered by the waters of streams or lakes. For the purpose of ascertaining the quantity of upland to be paid for, a line meandering the margin of such waters is run, and, where this is the purpose of running such a meandering line, it is not regarded as in any sense a boundary, but as only pointing out the sinuosities of the bank, for the purpose of arriving at the area of land to be paid for. Railroad Co. v. Schurmeir, 7 Wall. 272; Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. Ct. 808, 838; Horne v. Smith, 159 U. S. 40-43, 15 Sup. Ct. 988.
As we understand it, the contention of the appellant is that this meander line, following the southerly water line of the marsh, was not run as a boundary line, and that, if the marsh, under the evidence, was a part of Lake Erie, her boundary is the shore line of the lake proper, and, if that shore line has receded, her boundary has followed the retreating shore, giving to her, under the doctrine of reliction, the land thus gained. On the other hand, her contention is that, if the marsh was not a part of the lake, but was a mere pond, marsh, or other shallow nonnavigable body of water, her boundary should be projected by extension of the side lines of each fractional section into said shallow pond or marsh, so as to complete each section as required by the law requiring the subdivision of each township into 36 sections of 640 acres each.
It has been long settled that government grants for lands bordering upon navigable waters extend only to high-water mark. The title to the shore, and to the lands under such water, is in the state within which such waters are situated, as an incident of the sovereignty of the state, and is held by the state in trust for the public purposes of navigation. The United States has never had title to submerged lands under navigable waters, and its grants could not, therefore, be held as conveying them to their patentees. Pollard v. Hagan, 3 How. 212; McCready v. Virginia, 94 U. S. 394; Webber v. Commissioners, 18 Wall. 57; Hardin v. Jordan, 140 U. S. 371-380, 11 Sup. Ct. 808, 838; Scranton v. Wheeler, 16 U. S. App. 152, 6 C. C. A. 585, and 57 Fed. 803. It would therefore follow that, if this “flag marsh,” shown on the plats of Ambrose Rice, was then a part of Lake Erie proper, the submerged lands would not be subject to grant by the United States, and that the. title of the Cedar Point Club would fail, and this without [51]*51regard to the goodness or badness of the title claimed under the doctrine of reliction by the appellant. But that marsh, under the stipulation as to the facts, cannot be regarded as a part of Lake; Erie. The-waters of that lake did not permanently submerge the lands described as “flag marsh,” or “impassable marsh and water.” In times of heavy gales the marsh was subject to temporary inundation, but otherwise the wa ter, which stood or flowed over or through it, seems to have been the mere drainage from the higher lands adjoining, which found its way over these low lands to the lake. At the time of Bice's survey there was an unusual amount of water standing or flowing over the disputed land, and this may account for his failure to survey and plat it When Marsion made iris survey, in 1881, much of the marsh was dry enough for pasture purposes, and much was capable1 of yielding harvests of coarse hay, and all, or nearly all, was covered with grass, wild rice, and other products of such swampy land. Ata still later period it is shown that an even more favorable condition for pastoral purposes existed, due to unusual droughts occurring in 1893, 1891, and 1895. While, under the stipulation as to the facts, we must regard the condition of the marsh at the time of Rice’s survey as exceptional, we have no such liberty in regard to its condition when Mars ton made his survey. We can, therefore, find no evidence of any such general and continuous lowering of the level of the water in the lain1 as would, by (he doctrine of reliction, give to a riparian proprietor the laud gained between an old and new shore line.
The decision of the supreme court of Ohio in James v. Howell, 41 Ohio 8t. 696, can have no effect as res judicata, because it was not a suit between the parties to this record. That was a controversy between James, a predecessor in title to the appellant, and Howell, the patentee of one of the so-called “sandy islands” shown on Rice’s plat. James claimed then, as does his successor in title now, that the boundary of the Margaret Bariev patents was the open water of the lake, which would thus include1 Howell’s island. Howell’s defense seems to have been — First, tha Í. this marsh was a part of the lake proper, and that his patent was for an island separated from the shore of this' lake by this marsh; second, that the meander line run by Rice on the border of this marsh was run as a boundary line, and therefore the grants to her could not, under any circumstances, convey land not within her boundaries. The case was decided for Howell upon both grounds. So far as it was a judgment upon facts, it is of no force or effect upon a different record and between different parties. The conclusion of that court upon the evidence relating to the character of this marsh was thus stated by the court:
“The contributions of such streams, mingled with other water of the lake, fill the straits between Cedar, Sandy, and Crane Islands, and the space platted as ‘impassable water and marsh.’ Even at low water in the lake, there is six inches of water in this marsh. Witnesses speak of a chain of ponds. These are merely spots in the marsh where, because of the depth, or for some other reason, vegetation has not been able to find support. The water is under the, vegetation that covers the so-called marsh, as well as flu1 so-called ponds. The islands are in fact surrounded by water, although vegetation of a certain sort grows thickly in much of that water. The meandered line along the southerly edge of the so-called marsh, was in fact along a shore of the lake. In order to form a statutory [52]*52boundary, the navigable river need not be actually navigable at every point. Lake Brie, as a whole, is navigable. Por that reason, every part of its shore, under the act, might be treated by the surveyor as a legal boundary for fractional townships and sections. In so treating so much of the lake as lay behind these islands, Bice and Lytle did not exceed their authority. According to the evidence put in by James, as well as by Howell, it appears that, even at a low stage .of the lake, there is six inches depth of water in this marsh, and a greater depth in the straits.”
But the question as to whether this marsh was a part of Lake -Erie, and therefore a proper boundary for public lands bordering thereon, is a question of fact, to be determined in this case upon the evidence in the record. There is no evidence in. this record that the land in controversy “is land continuously submerged under not less than six inches of water in seasons when the water was lowest,” such as was found in the Ohio case. No such state of facts is shown in this record, .and by no stretch of imagination could any court, upon this record, conclude that this low, swampy body of land, partly boggy, partly dry, and sometimes subject to temporary inundation, was so continuously under the water of the great lake as to be a part thereof. We therefore reach the conclusion that this marsh was no part of Lake Erie when Bice made his survey in 1833-34, and that, if same was not included within the patents to Margaret Bailey for the fractional sections bordering thereon, it continued to be a part of the public lands, subject to survey and patent. That a water line existed along the course of the meandered line run by Rice cannot, perhaps, be collaterally questioned. But the question is whether that water line was the line of this marsh, then having an unusual amount of water collected therein, or the water line of the lake proper? That the meandered line followed the sinuosities of the marsh, and not of the lake, is most evident from the facts of this case. The area of the fractional sections is given, and it is stipulated that no part of the area of the marsh or sandy islands was included in the survey under which Margaret Bailey’s patents issued. It is also evident that no part of the marsh was surveyed at all. It is thus most manifest that this meandered line was run as a boundary, and not merely for the purpose of ascertaining the quantity of dry land paid for. It would be useless to speculate as to the reason which induced Rice to make the border of this marsh a boundary of the fractional sections bordering thereon. That he did so there can be no doubt. Margaret Bailey paid only for the area of the lands actually included in the fractional sections, and accepted patents ip which the meandered line along this marsh was made a boundary.,1 She and her successors in the title are estopped to deny that the line of that marsh was a proper line for a boundary. The patents conveyed only the land which was surveyed.
The case is governed by that of Horne v. Smith, decided in 1894, and reported in 159 U. S. 40, 15 Sup. Ct. 988 et seq. That case involved the true boundary of three patents for fractional sections of public lands in Florida.. The patents adopted the official plat of survey for identification of the lots granted. That plat showed that these lots were fractional sections bordering on Indian river. All the lines of the patents were the usual straight lines, with the exception of a line meandering a water line marked on the plat as “Indian [53]*53River.” The facts as to this line, as stated in the opinion of the court, were these:
“Along tlie course of this meander line, as shown on the plat, runs, according to the testimony, a bayou or savannah, opening into the Indian river, and west of this bayou, and between it and the main waters of the river, is a body of land, extending a distance of a mile or a mile and a quarter, and amounting to some <500 acres. This is a body of low land, in some places, however, from four to six feet above the level of the river, and covered with a growth of live oak trees, many of them three and lour feet in diameter. It was not land formed by accretion since ¡he surrey.”
The contention was that this meandered line was not run as a boundary, hut merely to ascertain the quantity of upland to be paid for, and that the patents granted the lands between that line and Indian river, - which was. in fact, more than a mile away. The land lying between this meandered line and Indian river was not in fact surveyed. In the course of its opinion the court said:
“But Ihe question in this case is whether the boundary of these lots is the bayou or the main body of the river. That a water line runs along the course of ¡he meander line cannot", of course, in the face of the plat and survey, be questioned; but that the meander line of the plat is the water line of the bayou, rather than that oí the main body of the river, is evident from these facts: In ihe first place, the area of the lots is given, and, -when that area is stated to be 170 acres, it is obvious that no survey was intended of over 700 acres. In the second place, the meander line, as shown on the plat, Is, so far as these lots are concerned, wholly within the east half of sections 23 and 2.6, while the water line of the main body of the river is a mile or a mile and a quarter west thereof, in sections 22 and 27. Again, the distance from the east lino of the section to the meander line is given, which is less than a quarter of a mile, while the distance from such east line to the main body of the river must be in the neighborhood of a mile and a half. Further, the description in the patent is of certain lots in sections 23 and 2(5, and, manifestly, that was not intended to include land in sections 22 and 27. These considerations are conclusive that the water line, which was surveyed and made the boundary line of the lots, was the water line of the bayou or savannah, apd there has been simply an omission to make any survey of the tract west of the bayou, and between It and the main body of the Indian river. It is unnecessary to speculate why it was that it was not surveyed. It may have been a mere oversight, or it may have been because the surveyors thought that the action of the water would soon wash the low land away; but, whatever the reason, the fact is obvious that no survey was made of that body of land, and the boundary line fixed was the water line of the bayou. * * * Although it was surveyed, it does not follow that a patent for the surveyed tract adjoining carries with it the land which, perhaps, ought to have been, but which was not in fact, surveyed. The patent conveys only the land which is surveyed, and, when it is clear from the plat and the surveys that the tract surveyed terminated at a particular body of water, the patent carries no land beyond it.”
In conclusion the court said:
“So, in the case before us, obviously, the surveyors surveyed only to this bayou, and called that the river. The plaintiff has no right to challenge the correctness of their action, or claim that the bayou was not Indian river, or a proper waterline upon which to bound the lots.”
The conclusion we reach is that the meandered line was the boundary line of the Margaret Bailey patents, and that the marsh was public land, subject to survey and patent, and that appellees obtained the title under the patents to Hanna and La Corse. This conclusion affirms the opinion of Justice Liarían, who heard this case below, and who, in a memorandum opinion, said:
[54]*54“My opinion is that the plaintiff is entitled to the relief asked in the bill. My conclusion rests upon the general ground that, while a meander line is ordinarily to be taken as showing only the quantity of land to be paid for by the purchaser, the meander line in this case must be taken as a line of boundary. I do not think that there was any Intention, by the survey and patents under which the principal defendant claims, to pass the title to the, marsh land between, tbe ‘meander’ line and the islands. On the contrary, it must be taken that the intention was not to pass the title to that land. I concur entirely with what was said in James v. Howell, 41 Ohio St. 696. And that case is supported in principle by Horne v. Smith, 159 U. S. 40, 15 Sup. Ct. 988.”
The decree is in all things affirmed.