Schurmeier v. St. Paul & Pacific Railroad

10 Minn. 82

• Court: Supreme Court of Minnesota
• Decided: January 15, 1865
• Status: Published

Opinion

By the Court —

Wilson, G. J.

— The laws gqverning the surveys and descriptions of the public lands, to which it is necessary to refer in this case, are found in an act approved May 18, 1796, entitled “An act providing for the sale of the lands of the United States in the Territory north-west of the Ohio River, and above the mouth of the Kentucky River,” in an act approved May 10, 1800, amendatory of the aforesaid act, and in an act approved February 11, 1805, entitled “An act concerning-the mode of surveying the public lands of the United States.” By these acts it is provided that the public lands shall be subdivided into townships of six miles square, sections of one mile square, and quarter sections, and that these subdivisions shall be bounded by north and south and east and west lines, unless where this is rendered impracticable by meeting a navigable water course, Indian boundary line, or the line of a tract of land before surveyed or patented. It is also provided that the rule of bounding by north and south and east and west lines, shall be departed from no farther than such particular circumstances require. By section 2 of the act of 1805, above referred to, it is provided “that the boundaries and contents of the several sections and quarter sections of the public lands of the United States, shall be ascertained in conformity with the following principles: * * * * The boundary lines actually run and marked in the surveys returned, shall be established as the proper boundary lines of the sections or subdivisions for which they were intended, and the length of such lines as returned shall he held and considered as the true length thereof; and the boundary lines which shall not have been actually run and marked as aforesaid, shall be ascertained by running straight lines from the established corners, to the opposite corresponding corners ; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the said boundary lines shall be ascertained by running from the established corners due north and south or east and west lines, as the case may be, to the water course, Indian boundary line, or other external boundary of such fractional township.” The fractional townships are to be surveyed and sold with the adjoining townships, and-it is to be observed that in the survey of such fractional subdivisions, the lines must run to the water course, (when the township is made fractional by a water course,) and such water course is by the act designated as the external boundary of the fractional township. No laAV that we are aware of in terms requires the “meandering” of water courses, but the acts of Congress above referred to, require the contents of each subdivision to be returned to, and a plat of the land surveyed to be made by the Surveyor General. This makes necessary an accurate survey of the meanderings o± the water course — that is the boundary of a fractional subdivision — and the line showing the place of the water course and its sinuosities, courses and distances is termed the meander line. The field books, therefore, necessarily show the water course to be the boundary of the tract or subdivision, and the plat should, and in this case does, correspond with the field books. In this case the correctness of neither could in this respect be questioned. Bates vs. Ill. Cent. R. R. Co., 1 Black., 204.

In March, 1849, the United States conveyed to Roberts lot one in question. At and prior to that time the government plat kept in the local land office, which showed the boundaries and descriptions of the public lands, and in accordance with which sales were made, showed no islands in the river in section five, or opposite lot one. The river at this point is navigable in fact, but being above the flow of the tide it is not deemed navigable in law. One question in the case is, whether the grant by the government to Roberts of lot one conveyed to Mm the island, so called, now-claimed by the defendants.

The Referee found as a matter of fact, that at the time when the government survey of lot one, in section five, was made, “The meander line of said lot was run along the left or northerly bank of a small channel or slough between said bank and the parcel of land which is designated ‘Island No. 11.’ That in very low water in the river there was no current and very little water, and that in pools in said channel or slough; and that at a medium stage of water the land designated ‘Island No. IP was above water, and there was a current or flow of water through said channel or slough, and that in very high water in the river the said land designated ‘Island No. 11’ was inundated.”

The defendants’ counsel claim that the meander line, and not the river, is the boundary of said lot one. This view is not’ sustained by the entries in the field books, by the government plat, or by the law in accordance with which the survey and sale were made. The entries in the field books show that the line that bounds lot one on the north, runs east until it intersects the left bank of the river, at which point a post is set called a “meander corner,” — that the line bounding said lot on the west runs south until it intersects the left bank of the river, at which point also, a meander post is set. The meander line of the river between these points commences at the first above mentioned meander post, and runs “thence up streama” (the courses and distances being given) to the last mentioned meander post. There is no such thing as a meander line in such case distinct and separate from the line of the river. It is merely an accurate survey of the river, and neither party in this case could be permitted to show that the river is in a different place from that designated by the field book and plat. See Bates vs. Ill. Cent. R. R. Co., above cited. The plat shows the river as the boundary, and the law as we have above seen, requires the boundary lines of'such lot on the other two sides to run to the river, and designates the river as the boundary of the third side.

We think, therefore, that it is too clear to admit of a reasonable doubt that the river bounds this lot on one side. But this being admitted, the further question is presented, whether the riparian owner takes to high water or low water mark, or to the middle thread of the stream.

At common law grants of land bounded on rivers above tide water carry the exclusive right and title of the grantee to the middle thread of the stream, unless an intention on the part of the grantor to stop at the edge or margin is in some manner clearly indicated ; except that rivers navigable in fact are public highways, and the riparian proprietor holds subject to the public easement. In this case no intention is in any way indicated to limit the grant to the water’s edge, and if the common law rule prevails here, Roberts, by his purchase, took to the centre of the river, including the land subsequently surveyed by the government — called Island No. 11 — and which is now claimed by the defendants. The common law of England, so far as it is applicable to our situation and governments, is the law of this country in all cases in which it has not been altered or rejected by statute, or varied by local usage under the sanction of judicial decisions. 2 Kent's Com., 27-8. "We think, in respect to the rights of riparian owners, it is as applicable to the circumstances of the people in this country as in England. It is not time in fact, as has been alleged, that the navigability in fact of a river above the flowing of the tide is a state of things unknown to or unprovided for by it. See Hale, Treatise De Jure Maris, &c., part 1, Chap. 3. In its application to cases like the one under consideration it has not been varied or rejected in this State, and the few States of the Union that have repudiated it are exceptions to the general rule. See Jones vs. Soulard, 24 How. U. S. R., 41, and case cited in brief of counsel of defendant in error; Govett vs. Chambers, 3 Ohio, 496; Middleton vs. Prichard, 3 Scammon's, 510; Ex parte Jennings, 6 Cowan, 518, and note; Palmer vs. Mulligan, 3 Caine's Reps., 318, and note; 3 Kent's Com., 427, et seq. and cases cited in note; 2 Smith's Leading Cases, 217-227; Angell on Water Courses, chap. 1, and cases cited; 2 Washburne's Real Prop., 632, and notes.

Some — we believe most — of the authorities that deny that tho riparian proprietor owns to the middle thread of the stream, hold that he takes to the low water mark. See Halsey vs. McCormick, 13 N. Y. R., 296; Morgan vs. Ready, 2 Smeade's & M., 366; Childs vs. Starr, 4 Hill, 396; Blanchard vs. Porter, 11 Ohio, 138; 2 Smith's Leading Cases, 224-6, and cases cited.

This we think would include the land claimed by the defendant, and designated “Island No. 11.” We hold, therefore, that by the patent to Roberts, the U. S. conveyed to him said “island.”

We think no reason can be given why the same rule should not apply to grants made by the Government that are applicable to grants made by individuals. Section 9, of the act of -Congress, first above cited, provides- that all navigable rivers within the territory to be disposed of by virtue of that act, shall be deemed “to be and remain public highways.” At common law rivers navigable in fact are public highways, and the riparian owner holds subject to the public easement. This act of Congress, therefore, is merely a declaration or affirmance of the common law, and not a modification of it.

The fact that these rivers are, and must remain public highways, is not at all inconsistent with the view, that riparian owners have the fee of the bed of the stream. Peck vs. Smith, 1 Conn., 133.

The defendants’ counsel argues that even if Roberts by his purchase from the government became the owner, he afterwards by the record of his plat, parted with the fee of that portion laid out into streets and landing, and that by sec. 7 of chap. 1 of the laws of the extra session of 1857, the legislature authorized the use of said streets by the Railroad Company. The statute of Wisconsin under which the plat of this portion of St. Paul was recorded, reads as follows: “When the plat or maps shall have been made out and certified, acknowledged and recorded as required by this act, every donation or grant to the public or any individual, religious society, or any corporation or body politic, marked or noted as such on said plat or map, shall be deemed in law and in equity a sufficient conveyance to vest the fee simple of all such parcels as therein expressed, and shall be considered to all intents and purposes, a general warranty against such donors, their heirs and representatives to the said donee or grantee for his use, for the uses and purposes therein named, expressed and intended, and for no other use and purpose whatever; and the land intended to be for the streets, alleys, ways, commons or other public uses in any town or city, or addition thereto, shall be held in the corporate name thereof in trust to and for the uses and purposes set forth and expressed or intended.”

A dedication is not a grant or donation. Its effect is not to deprive a party of title to his land, but to estop him, while the dedication continues in force, from asserting a right of possession inconsistent with the uses and purposes for which it was made. Hunter vs. Trustees of Sandy Hill, 6 Hill, 407, Cincinnati vs. Lessee of White, 6 Pet, 432-438.

If, therefore, the corporate authorities of the town of St. Paul acquired the fee simple of the land over which the streets are laid, it must have been by virtue of the statutory provisions above cited.

But we think an examination of the statute will not lead to the conclusion that it operated as a conveyance of the complete title.

The first clause of the section refers to “donations or grants marJced or noted as such in the platf and we think has no reference to the land to be used for streets, landing, &c. As to the lands marked on the plat as granted or donated, the statute declares that this shall be deemed in law and in equity, a sufficient conveyance to vest the fee simple; but as to the lands intended for streets and alleys, the language is not that a fee simple shall pass, hut that it “shall be held in the corporate name in trust to and for the uses and purposes expressed or intended.”

The change of phraseology is quite significant. In the latter case we think it is manifest that the intention of the statute was not to pass the fee simple, but merely such an estate or interest as the purposes of the trust required. The use for which the dedication was made, therefore, determines the extent of the right parted with by the owner and acquired by the public or corporate authorities of the town. Neither the use for which the dedication was made, nor the language of the statute justifies, in this case, the conclusion that a legislative transfer of the fee was intended, and without such transfer, it remains in Roberts and his grantees. See 2 Smith Leading Cases, 215.

The plaintiff, therefore, as grantee of Roberts had an interest and property in the streets and landing opposite lots 11 and 12 which could not, without compensation, be taken for public use or subjected to any greater burden or servitude than was expressed or intended by the dedication under said statute. The use of the streets and landing by the Railroad Company for a railroad track is, manifestly, not such a use as the dedication or statute contemplated or authorized, and we think, it admits of much doubt whether the legislature intended to give the defendants such a license.

The authorization by the legislature of such use would be an interference with the reserved rights of the plaintiff, and an attempt to authorize the taking of private property for public uses without compensation. See Redfield on Railways, 2d Ed., 158-165, Sec. 14, and notes and cases cited in notes; Williams vs. N. Y. Cent. R. R. Co., 16 N. Y., 97; Tate vs. Ohio & Miss. R. R., 7 Port, (2d,) 499; Haynes vs. Thomas, Id., 38.

But even if it was held that by the record of the plat, the corporate authorities of the town of St. Paul acquired a complete title to the land over which the streets and landing are laid, it cannot be doubted but that the transfer was made to them on the consideration and express condition that the land should be used for and as streets and landing only, for the use and benefit of the public generally, and particularly for the use and benefit of the owners «of adjacent lots.

If, by this act of the Legislature the town authorities acquired the streets and landing for the public use, by the same act they were bound to dedicate and hold them solely to and for the uses expressed.

The original donor gave the property, and every subsequent purchaser of the lots fronting on the streets or landing purchased on the condition and with the understanding and implied agreement, that the streets and landing should forever he kept open for his use| benefit and enjoyment.

This gave to the adjacent lots their principal value. It would therefore seem that the original owner and subsequent purchasers obtained a property and vested right in the streets and landing. See Tate vs. Ohio and Mississippi Railroad, and Haynes vs. Thomas, cited above. If this is so, then the plainest dictates of justice, as well as the express provisions of-our Constitution, would require that the property should not be taken or injuriously affected without compensation.

The Railroad Company having no legal authority to obstruct the streets or landing, and such obstruction being a special injury to the plaintiff, we think he has a right to the relief prayed for.

We think the conclusions of the Referee in the case are correct, and that the judgment below should be affirmed.

Berry, J. — I agree with the following conclusions arrived at in the foregoing opinion :

1. That lot number one extended to the water’s edge at low water mark, including the parcel of land designated as Island No. Eleven.

2. That the landing extended to the same line.

3. That Schurmeier by his purchase of lots eleven and twelve as platted, acquired at least an easement in the landing which could not be impaired for public use without compensation.

4. That the corporate authorities of St. Paul acquired by the plat and the recording thereof, not the fee of the landing, but only such estate or interest as was necessary to support the uses and trusts for which they held it.

5. That the railroad structures, &c., complained of, are an obstruction to the free use and enjoyment of the easement aforesaid, and constitute a private nuisance as respects Schurmeier, entitling him to an injunction.

As to the other conclusions arrived at I express no opinion, but concur in the disposition made of the case.