A fractional section of land on the left bank of the Missouri
River in Iowa was surveyed by United States surveyors in 1851, and
lot 4 therein was formed, and so designated on the plat filed, and
as containing 37.24 acres, the north boundary of it being on the
Missouri River. In 1853, the lot was entered and paid for, and was
patented in June, 1855, as lot 4. Afterwards, by ten mesne
conveyances, made down to 1888, the lot was conveyed as lot 4, and
became vested in the plaintiff. About 1853 new land was formed
against the north line, and continued to form until 1870, so that
then more than 40 acres had been formed by accretion by natural
causes and imperceptible degrees within the lines running north and
south on the east and west of the lot, and the course of the river
ran far north of the original meander line. The defendant claimed
to own a part of the new land by deed from one who had entered upon
it. The plaintiff filed a bill to establish his title to the new
land, claiming it as a part of lot 4. On demurrer to the bill,
Held:
(1) The bill alleging that the land was formed by "imperceptible
degrees,"
Page 134 U. S. 179
the time during which the large increase was made being nearly
20 years, the averment must stand notwithstanding the character of
the river and the rapid changes constantly going on in its
banks.
(2) Where a water line is the boundary of a given lot, that
line, no matter how it shifts, remains the boundary, and a deed
describing the lot by its number conveys the land up to such
shifting water line, so that, in the view of accretion, the water
line, if named as the boundary, continues to be the boundary, and a
deed of the lot carries all the land up to the water line.
(3) Accretion is an addition to land coterminous with the water
which is formed so slowly that its progress cannot be perceived,
and does not admit of the view that in order to be accretion, the
formation must be one not discernible by comparison at two distinct
periods of time.
(4) The patent having conveyed the lot as lot 4, and the
successive deeds thereafter having conveyed it by the same
description, the patent and the deeds covered the successive
accretions, and neither the United States nor any grantor retained
any interest in any of the accretion.
(6) Where a plat is referred to in a deed as containing a
description of land, the courses, distances and other particulars
appearing upon the plat are to be as much regarded, in ascertaining
the true description of the land and the intent of the parties, as
if they had been expressly enumerated in the deed.
This is a suit in equity, brought in the Circuit Court of the
United States for the District of Nebraska on the 9th of February,
1889, by The East Omaha Land Company, a Nebraska corporation,
against Thomas Jefferis. The case was heard on a demurrer to the
bill, which makes it necessary to state with particularity the
allegations of the bill. The are as follows:
The lands which are the subject of the suit are of the value of
$2,000 or more. In 1851, the deputy surveyors of the United States,
then engaged in surveying the public lands in township 75 N., range
44 W., of the fifth principal meridian, in the State of Iowa, ran,
marked, and made field notes and plats on the meander line of the
left bank of the Missouri River, and returned the said field notes
and plats to the Surveyor General of Iowa, who filed the same in
the General Land Office, and they were thereupon duly approved, and
since that time no resurvey has been made by the United
Page 134 U. S. 180
States of the lands lying along, upon, or near said river, or of
the premises which are the subject of the bill.
Section 21 in that township was properly surveyed and subdivided
by the deputy surveyors, and the plats and notes thereof were duly
made, returned, and approved as aforesaid. By the surveys, the
section was found, and by the plats and notes thereof returned, as
fractional, and a part thereof, designated as lot 4, was formed,
containing 37.24 acres, the north boundary thereof being on the
Missouri River. The meander line of the river was described in the
field notes as beginning at meander corner No. 6, the same being at
a point on the line between sections 16 and 17 in said township and
range, about 100 feet north of the intersection of the exterior
lines of said sections 16 and 7 and sections 20 and 21; thence
south, 71 degrees east, 2.68 chains, to meander post No. 7, on the
north line of lot 4; thence south, 79 degrees 50 minutes east, 54
chains; thence north, 85 degrees east, 4.50 chains; thence east 15
chains; thence north, 78 degrees east, 5.25 chains to the corner of
sections 21 and 22. A map is annexed, marked "Exhibit A," being a
true copy of the plat so made, returned, and approved, showing the
meander line of the river, and the lines of the subdivisions of
sections 16, 17, 21, and 22.
On the 10th of October, 1853, one Edmund Jefferis entered lot 4
at the United States land office for the district of land subject
to sale at Kanesville, Iowa, paid the proper officer of the office
the legal price thereof, and received therefor the usual register's
certificate, and on the 15th of June, 1855, the usual patent of the
government was duly issued to him for the land. In the certificate
and patent the land was described as lot 4, in fractional section
21, in township 75 north, range 44 west, of the fifth principal
meridian, containing 37.24 acres, according to the official plat of
the survey of the land returned to the General Land Office by the
surveyor general. At the time of the entry, the meander line of the
left bank of the river was the same, or nearly the same, as shown
by such field notes and plat.
On the 14th of July, 1856, said Jefferis duly conveyed the
Page 134 U. S. 181
land to Joseph Still and Joseph I. Town, describing the same
simply as lot 4, in section 21, in township 75 north, range 44
west, of the fifth principal meridian. On the 21st of September,
1857, Town conveyed the undivided half of the premises, with
warranty, to one McCoid, who, on the 16th of October, 1857,
quitclaimed the premises to one Coleman. On the 25th of May, 1858,
Coleman conveyed them, with warranty, to Mrs. Ruth A. Town. On the
27th of April, 1859, Joseph I. Town and Ruth A. Town conveyed them,
with warranty, to one Boin, who, on the 30th of May, 1861,
quitclaimed them to one McBride, and McBride, on the 30th of
September, 1861, quitclaimed them to one Schoville. Schoville
having died, his widow and heirs quitclaimed them to the plaintiff,
on the 22d of March, 1888. On the 9th of March, 1888, Still
quitclaimed the other undivided half of the premises to Lyman H.
Town, who, on the 28th of March, 1888, conveyed the same to the
plaintiff. In each of the deeds made by those several parties, the
premises were described as lot 4, in fractional section 21,
township 75 north, range 44 west, of the fifth principal meridian,
and the deeds were duly recorded in the registry of Pottawattamie
County, Iowa, in which county the premises were situated.
About the time of the original entry of lot 4 by Edmund
Jefferis, new land was formed along and against the whole length of
the north line thereof, and from that time continued to form until
1870, so that in that year at a distance of 20 chains and more from
the original meander line before described, and within the lines of
the lot on the east and west running north and south, a tract of 40
acres and more had been formed by accretion to the lot, and ever
since had been and now is a part thereof. The said land was so
formed by natural causes and imperceptible degrees -- that is to
say, by the operation of the current and waters of the river,
washing and depositing earth, sand, and other material against and
upon the north line of the lot, and the waters and current of the
river receded therefrom, so that the new land so formed became high
and dry, above the usual high water mark, and the river made for
itself its main course far north of the original meander line.
Page 134 U. S. 182
Such process, begun in 1853 and continued until 1870, went on so
slowly that it could not be observed in its progress, but at
intervals of not less than three or four months, it could be
discerned by the eye that additions greater or less had been made
to the shore.
In 1877, the river, at a point more than a mile south of the
north line of the lot, suddenly cut through its bank and made for
itself a course through the same, leaving all of section 21 north
of its bank. A plat, marked "Exhibit B," is annexed upon which is
delineated the river both before and after such sudden change.
The river is and always has been navigable for steamers of large
tonnage. The United States never claimed any interest in the lands
so formed by accretion to lot 4. The plaintiff submits that by such
several mesne conveyances, whereby the title to lot 4 has come to
it, it has become seised in fee not only of the land included
within the boundaries of the lot at the time of such survey, but
also of the land so formed by accretion thereto, so that the east
and west boundaries of the lot are formed by the protraction of the
east and west lines north to the left bank of the river as the same
was in 1877, when the river suddenly changed its course, and the
north boundary of the lot is the said left bank at that time.
When the plaintiff became seised of the land, it entered into
the same and made large and valuable improvements thereon, and it
has projected the enterprise of redeeming the land and other land
adjoining it, of improving the same so that the whole will be
available for railroad and manufacturing purposes, of building
railroad tracks, stationhouses, depots, warehouses, and
manufacturing establishments, and selling parcels of the land to
others for such purposes, and has expended more than $20,000, and
has in hand $100,000 which it purposes to expend in grading, and in
building roads, bridges, etc.
In 1888 one, Counzeman and others, without any authority of law,
entered upon the land so formed by accretion and for a time
occupied it, but afterwards abandoned it. Recently, Counzeman has
made to the defendant a deed of quitclaim
Page 134 U. S. 183
purporting to convey a certain parcel of the land so formed by
accretion to lot 4. The south line of the land so conveyed to the
defendant is about two hundred feet north of the original meander
line of lot 4, as that line was so run, marked, and platted by the
United States surveyors, and the deed purports to convey about
twenty acres, which are within the above-recited boundaries of the
land formed by accretion to lot 4. When Counzeman entered upon the
land and when he made the deed to the defendant, each of them well
knew of the plaintiff's plan and purposes in respect thereof, and
that they had no right so to enter, and the defendant threatens to,
and, unless restrained by injunction, will, dispossess the
plaintiff and seriously interfere with its plans and purposes. The
defendant is insolvent, and unable to answer for the damage to
which he will subject the plaintiff by entering into the premises
and dispossessing the plaintiff.
The bill waives an answer on oath, and prays for an injunction
restraining the defendant from entering into, taking possession of,
or intermeddling with, any part of the premises conveyed to him by
Counzeman, and for a decree declaring that the land so formed
against lot 4, including that conveyed to the defendant, became and
was a part of lot 4, and included within its description; that the
title to it has become and is vested in the plaintiff; that the
deed made to the defendant be delivered up to be cancelled, that he
be perpetually enjoined from asserting the same or any title or
interest thereunder against the plaintiff, and for general
relief.
The defendant interposed a general demurrer to the bill for want
of equity.
The case was heard before MR. JUSTICE BREWER, then circuit
judge, who filed an opinion on the 1st of March, 1889, directing
that the demurrer be sustained. 40 F. 386. On a petition for a
rehearing, which was heard by the same judge, he filed an opinion,
40 F. 390, directing that the demurrer be overruled. Thereupon a
decree was entered, on the 13th of November, 1889, overruling the
demurrer, granting a perpetual injunction restraining the defendant
from entering into, taking possession of, or in any manner
Page 134 U. S. 184
intermeddling with the premises, and from asserting any right or
interest therein, and declaring that the land in question was
formed by process of accretion and imperceptible degrees against
the premises known and described as lot 4 of section 21, in
township 75 north of range 44 west of the fifth principal meridian,
in the State of Iowa, as the same was originally surveyed and
platted by the surveyors of the United States, and became, by such
accretion, a part of said lot, and was included within such
description, and the title thereto passed by such description from
the original patentee of the United States to the plaintiff, by
divers mesne conveyances, and is now vested in the plaintiff. It
was further decreed that the deed made to the defendant by
Counzeman, purporting to convey the premises be delivered up to the
plaintiff, to be cancelled, and that the plaintiff recover its
costs to be taxed. The premises upon which the decree operated were
described in it as follows: beginning at a point 1,520 feet north
of the southwest corner of lot 4, in section 21, township 75 north,
range 44 west, of the fifth principal meridian; running thence,
north 660 feet; thence east 1,320 feet to the extension due north
of the east boundary line of said lot 4, as originally surveyed and
platted by the United States; thence south, on that line, 660 feet,
and thence west to the place of beginning, containing 20 acres. The
decree further states that the defendant prayed an appeal to this
Court, and that it was allowed.
Page 134 U. S. 187
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
The grounds upon which the circuit court proceeded in overruling
the demurrer to the bill are stated by it in its opinion to be
these:
(1) It being alleged in the bill that the added land was formed
by "imperceptible degrees," although the increase was great,
resulting in the addition of many acres, yet the time during which
it was made was nearly twenty
Page 134 U. S. 188
years, and an increase might have been going on, imperceptible
from day to day and from week to week, which, during the lapse of
so many years, might result in the addition of all the land, and
hence the averment of the bill cannot be overthrown,
notwithstanding what is known of the character of the Missouri
River, and of the soil through which it flows, and of the rapid
changes in its banks which are constantly going on. (2) Where a
water line is the boundary of a given lot, that line, no matter how
it shifts, remains the boundary, and a deed describing the lot by
number or name conveys the land up to such shifting water line,
exactly as it does up to the fixed side lines, so that as long as
the doctrine of accretion applies, the water line, no matter how
much it may shift, if named as the boundary, continues to be the
boundary, and a deed of the lot carries all the land up to the
water line.
The propositions contended for by the defendant are these:
(1) Taking the allegations of the bill, with those facts in
relation to the Missouri River of which the court will take
judicial notice, it appears that the formation in question was not
accretion. (2) Taking the allegations of the bill most strongly
against the plaintiff, it must be assumed that some area, however
narrow, had formed between the time when the survey was made, in
1851, and the time when the land was entered by the patentee, in
October, 1853. (3) The patentee, by the deed made by him to Still
and Joseph L. Town, conveyed only "lot 4," and while the successive
grantees held the title to that lot, accretions were formed of
greater or less extent, which were never conveyed to the plaintiff,
the deeds to it calling only for lot 4. The substance of this
contention is that as the conveyance by the patentee to Still and
Joseph I. Town described the land simply as "lot 4," it passed the
title to that lot as it was at the date of the survey in 1851, and
not at the date of the deed, in 1856 and thereby excluded the new
land formed after the survey of 1851, and that, as accretions of
greater or less extent were formed while the several successive
grantees held the title, such accretions did not pass by their
respective deeds, and the title thereto has not come to the
plaintiff.
Page 134 U. S. 189
It is distinctly alleged in the bill that the new land is an
accretion to that originally purchased by the patentee from the
United States. The rule of law applicable to such a state of facts
is thus stated by this Court in
New
Orleans v. United States, 10 Pet. 662,
35 U. S.
717:
"The question is well settled at common law that the person
whose land is bounded by a stream of water which changes its course
gradually by alluvial formations shall still hold by the same
boundary, including the accumulated soil. No other rule can be
applied on just principles. Every proprietor whose land is thus
bounded is subject to loss by the same means which may add to his
territory, and as he is without remedy for his loss in this way, he
cannot be held accountable for his gain."
And in
Banks v. Ogden,
2 Wall. 57,
69 U. S. 67, it
is said:
"The rule governing additions made to land bounded by a river,
lake, or sea, has been much discussed and variously settled by
usage and by positive law. Almost all jurists and legislators,
however, both ancient and modern, have agreed that the owner of the
land thus bounded is entitled to these additions. By some, the rule
has been vindicated on the principle of natural justice that he who
sustains the burden of losses and of repairs imposed by the
contiguity of waters ought to receive whatever benefits they may
bring by accretion; by others it is derived from the principle of
public policy that it is the interest of the community that all
land should have an owner, and most convenient that insensible
additions to the shore should follow the title to the shore
itself."
It is contended by the defendant that this well settled rule is
not applicable to land which borders on the Missouri River because
of the peculiar character of that stream and of the soil through
which it flows, the course of the river being tortuous, the current
rapid, and the soil a soft, sandy loam, not protected from the
action of water either by rocks or the roots of trees; the effect
being that the river cuts away its banks, sometimes in a large
body, and makes for itself a new course, while the earth thus
removed is almost simultaneously deposited elsewhere, and new land
is formed almost as rapidly as the former bank was carried
away.
Page 134 U. S. 190
But it has been held by this Court that the general law of
accretion in applicable to land on the Mississippi River, and, that
being so, although the changes on the Missouri River are greater
and more rapid than on the Mississippi, the difference does not
constitute such a difference in principle as to render inapplicable
to the Missouri River the general rule of law.
In
Jones v.
Soulard, 24 How. 41, it was held that a riparian
proprietor on the Mississippi River at St. Louis was entitled, as
such, to all accretions as far out as the middle thread of the
stream, and that the rule well established as to fresh water rivers
generally was not varied by the circumstance that the Mississippi
at St. Louis is a great and public watercourse. The Court said that
from the days of Sir Matthew Hale, all grants of land bounded by
fresh water rivers where the expressions designating the water line
were general conferred the proprietorship on the grantee to the
middle thread of the stream, and entitled him to the accretions;
that the land to which the accretion attached in that case was an
irregular piece of 79 acres, and had nothing peculiar in it to form
an exemption from the rule; that the rule applied to such a public
watercourse as the Mississippi was at the City of St Louis, and
that the doctrine that, on rivers where the tide ebbs and flows,
grants of land are bounded by ordinary high water mark had no
application to the case, nor did the size of the river alter the
rule.
In
Saulet v.
Shepherd, 4 Wall. 502, the doctrine of accretion
was applied in respect of a lot of alluvion or batture in the
Mississippi River fronting the City of New Orleans, in favor of the
riparian proprietor, and it was held that the right to the alluvion
depended upon the fact of the contiguity of the estate to the
river, and that where the accretion was made to a strip of land
which bordered on the river, the accretion belonged to such strip,
and not to the larger parcel behind it, from which the strip, when
sold, was separated.
In
County of St Clair v.
Lovingston, 23 Wall. 46, the same doctrine was
applied to a piece of land situated on the east bank of the
Mississippi River opposite St. Louis. It was there held that where
a survey began "on the bank of the river,"
Page 134 U. S. 191
and was carried thence "to a point in the river," the river bank
being straight and running according to such line, the track
surveyed was bounded by the river; that alluvion meant the addition
to riparian land, gradually and imperceptibly made, through causes,
either natural or artificial, by the water to which the land was
contiguous; that the test of what was gradual and imperceptible was
that although the witnesses might see from time to time that
progress had been made, they could not perceive it while the
process was going on, and that it was alluvion whether the addition
was made on a stream which overflowed its banks or on one which did
not. The authorities on the subject are collected in the opinion in
that case.
The rule is as applicable to the Missouri River as it is to the
Mississippi, whether the principle on which it rests be that the
riparian owner is entitled to the addition to his land because he
must bear without compensation the loss of land caused by the
action of the water and any consequent expense of repair to the
shore or whether that principle be one of public policy, in that it
is to the interest of the community that all lands should have an
owner, and most convenient that insensible additions to the shore
should follow the title to the shore.
In the present case, the land in question is described in the
bill as a tract of 40 acres and more. How much, if any of it, was
formed between the date of the original survey in 1851 and the time
of the entry in October, 1853, cannot be told, nor how much was
formed between 1853 and 1856, while the patentee owned the lot, and
so in regard to the time when it was owned by each successive
owner. There can be, in the nature of things, no determinate
record, as to time, of the steps of the changes. Human memory
cannot be relied on to fix them. The very fact of the great changes
in result, caused by imperceptible accretion, in the case of the
Missouri River, makes even more imperative the application to that
river of the law of accretion.
The bill must be held to state a fact in stating that the land
in question was formed by "imperceptible degrees," and that the
process, begun in 1853 and continued until 1870, resulting
Page 134 U. S. 192
in the production by accretion of the tract of 40 acres and
more,
"went on so slowly that it could not be observed in its
progress, but at intervals of not less than three or more months,
it could be discerned by the eye that additions greater or less had
been made to the shore."
The fact as thus stated is that the land was formed by
imperceptible degrees within the meaning of the rule of law on the
subject, and it is not capable of any construction which would
result in the conclusion that the land was not formed by
imperceptible degrees.
In the Roman law. it was said in the Institutes of Gaius, Book
II, § 70:
"Alluvion is an addition of soil to land by a river so gradual
that in short periods the change is imperceptible; or, to use a
common expression, a latent addition."
Justinian says, Institutes, Book II, title 1, § 20: "That
is added by alluvion which is added so gradually that no one can
perceive how much is added at any one moment of time."
The same rule was introduced into English jurisprudence. Bracton
says, Book II, c. 2:
"Alluvion is a latent increase, and that is said to be added by
alluvion, whatever is so added by degrees, that it cannot be
perceived at what moment of time it is added, for although you fix
your eyesight upon it for a whole day, the infirmity of sight
cannot appreciate such subtle increments, as may be seen in the
case of a gourd and such like."
Blackstone says, 2 Com. 262:
"And as to lands gained from the sea, either by alluvion, by the
washing up of sand and earth, so as in time so make terra firma, or
by dereliction, as when the sea shrinks bank below the usual
watermark, in these cases, the law is held to be that if this gain
be by little and little, by small and imperceptible degrees, it
shall go to the owner of the land adjoining. For
de minimis non
curat lex, and besides, these owners being often losers by the
breaking in of the sea, or at charges to keep it out, this possible
gain is therefore a reciprocal consideration for such possible
charge or loss."
The whole subject was fully considered in England in the case of
Rex v. Lord Yarborough, 3 B. & C. 91, in the King's
Bench, same case, in the House of Lords, 2 Bligh N.S. 147, and 1
Dow & Cl. 178; same case,
sub. nom. Gifford v. Lord
Yarborough,
Page 134 U. S. 193
in the House of Lords, 5 Bing. 163, where it was decided in
effect that in cases of alternate accretion and decretion the
riparian proprietors had movable freeholds -- that is, moving into
the river with the soil as it was imperceptibly formed, and then
again receding, when by attrition it was worn away. Lord Yarborough
owned lands immediately adjoining the sea, to prevent the
encroachment of which upon his he built sea walls on two sides. The
ooze, sand, and soil from the sea were gradually deposited outside
of and against these walls until, by the accretion, some 450 acres
of land were made in a short time, which the Crown claimed against
him. But the Court of King's Bench held, and the decision was
affirmed by the House of Lords, that, the land being formed by the
gradual and imperceptible action of the sea, Lord Yarborough, and
not the Crown, was entitled to it.
See also In re Hull &
Selby Railway, 5 M. & W. 327;
Scratton v. Brown,
4 B. & C. 485.
The doctrine of the English cases is that accretion is an
addition to land conterminous with the water which is formed so
slowly that its progress cannot be perceived, and does not admit of
the view that, in order to be accretion, the formation must be one
not discernible by comparison at two distinct points of time.
In
New Orleans v. United States, supra, the accretion
was 140 feet in width, formed in 22 years. In
County of St.
Clair v. Lovingston, supra, the Court says:
"In the light of the authorities, alluvion may be defined as an
addition to riparian land, gradually and imperceptibly made by the
water to which the land is contiguous. . . . The test as to what is
gradual and imperceptible, in the sense of the rule, is that though
the witnesses may see from time to time that progress has been
made, they could not perceive it while the process was going
on."
To the same effect are
Jones v.
Johnston, 18 How. 150;
Jones v.
Soulard, 24 How. 41;
Schools v.
Risley, 10 Wall. 91;
Halsey v. McCormick,
18 N.Y. 147;
Mulry v. Norton, 100 N.Y. 424;
Academy v.
Dickinson, 9 Cush. 544;
Camden & Atlantic Land Co. v.
Lippincott, 45 N.J.Law 405.
Page 134 U. S. 194
The accretion set forth in the bill is alleged to have taken
place between 1853 and 1870, and it is not alleged that the sudden
change in the course of the river in 1877 caused any accretion.
There is no suggestion in the bill that the land made by the
accretion can be identified as having been previously the land of
any particular person. There can be no identification unless there
is a sudden change, and that is the very opposite of an
imperceptible accretion.
We come now to consider the question of what passed by the
description in the patent of the land as lot 4, containing 37.24
acres, according to the official plat of the survey of the land,
returned to the General Land Office by the surveyor general.
The bill alleges that in 1851, when the township was surveyed,
the meander line of the river, as marked on the plat, ran along the
bank of the river, and that at the time of the entry, in 1853, the
meander line of the left bank of the river was the same, or nearly
the same, as that shown by the field notes, and on the plat made,
returned, and approved in 1851. On these facts it is contended for
the defendant that the title to any new land which may have been
made between 1851 and 1853 by accretion did not pass to the
patentee by the grant of lot 4 in the patent, but remained in the
United States. The plaintiff, on the other hand, contends that the
description in the patent of the land as lot 4 in effect made the
river the boundary on the north, and passed the title of the United
States to any new land that might have been formed before that
time.
The bill states that the register's certificate and the patent
described the land as lot 4, in fractional section 21, in township
75 north, range 44 west, of the fifth principal meridian,
containing 37.24 acres, according to the official plat of the
survey of said land returned to the General Land Office by the
surveyor general. That plat, of which a copy is annexed to the bill
and marked "Exhibit A," shows the Missouri River as the north
boundary of lot 4, and that lot is marked on the plat as containing
37.24 acres.
It is a familiar rule of law that where a plat is referred to in
a deed as containing a description of land, the courses,
distances,
Page 134 U. S. 195
and other particulars appearing upon the plat are to be as much
regarded, in ascertaining the true description of the land and the
intent of the parties, as if they had been expressly enumerated in
the deed.
Fox v. Union Sugar Refinery, 109 Mass. 292. This
rule is applicable to government lands bounded by the Missouri
River as the same are surveyed and platted under the acts of
Congress, and the patent passed the title of the United States to
lot 4, not only as it was at the time of the survey in 1851, but as
it was at the date of the patent in 1855, so that the United States
did not retain any interest in any accretion formed between the
survey in 1851 and the date of the patent.
No different rule is established by the acts of Congress which
provide for the survey and sale of the public lands. The provisions
found in section 2395
et seq. of the Revised Statutes, in
regard to the survey of the public lands, are reenactments of
statutes passed in 1796, 1800, 1805, 1820, and 1832. According to
these provisions, section 21 being a fractional section, because
the river cut through it on its north side, the east and west side
lines of lot 4 were to be run north to the river. No provision was
made for running the north boundary line of lot 4, but the river
formed such north boundary without the running of any line there.
The statute provided that where the course of a navigable river
rendered it impracticable to form a full township of six miles
square, and in those portions of fractional townships where no
opposite corresponding corners could be fixed to which to run
straight lines from established corners, the boundary lines should
be ascertained by running from the established corners, due north
and south or east and west lines, as the case might be, to the
watercourse, Indian boundary line, or other external boundary of
such fractional township.
In the present case, the plat was made in accordance with the
statute, showing the river as the northern boundary of fractional
section 21, and of lot 4 therein, and as the patent referred to the
official plat of the survey, and thus made that a part of the
description of lot 4, that description made the river the boundary
of lot 4 on the north.
Page 134 U. S. 196
In
Railroad Co. v.
Schurmeir, 7 Wall. 272, this Court said:
"Meander lines are run in surveying fractional portions of the
public lands bordering upon navigable rivers not as boundaries of
the tract, but for the purpose of defining the sinuosities of the
banks of the stream, and as the means of ascertaining the quantity
of the land in the fraction subject to sale, and which is to be
paid for by the purchaser. In preparing the official plat from the
field notes the meander line is represented as the border line of
the stream, and shows, to a demonstration, that the watercourse,
and not the meander line, as actually run on the land, is the
boundary."
We are therefore of opinion that the patent of June 15, 1855,
which described the land conveyed as lot 4, according to the
official plat of the survey, of which a copy is annexed to the
bill, marked "Exhibit A," conveyed to the patentee the title to all
accretion which had been formed up to that date.
The case of
Jones v.
Johnston, 18 How. 150, is cited by the defendant as
holding that a grantee can acquire by his deed only the land
described in it by metes and bounds, and cannot acquire, by way of
appurtenance, land outside of such description. But that case holds
that a water line, which is a shifting line, and may gradually and
imperceptibly change, is just as fixed a boundary in the eye of the
law as a permanent object such as a street or a wall, and it
justifies the view announced by the circuit court in its opinion
that where a water line is the boundary of a given lot, that line,
no matter how it shifts, remains the boundary, and a deed
describing the lot by number or name conveys the land up to such
shifting line exactly as it does up to a fixed side line.
See
also Lamb v. Rickets, 11 Ohio, 311;
Giraud's Lessee v.
Hughes, 1 G. & J. 249;
Kraut v. Crawford, 18 Ia.
549.
These views result in the conclusion that the side lines of lot
4 are to be extended to the river not as the river ran at the time
of the survey in 1851, but as it ran at the date of the patent in
1855, and that all the land which existed at the latter date
between the side lines so extended and between the line of the lot
on the south and the river on the north was conveyed by the
patent.
Page 134 U. S. 197
All the grantors in the deeds made subsequently to the patent,
including the patentee, described the land in their successive
deeds as lot 4. It is contended by the defendant that this
description conveys the land as it was at the date of the entry, or
at most at the date of the patent; that as, from the allegations in
the bill, it must be intended that some accretion was formed
between July 14, 1856, the date of the deed by the patentee, and
September 21, 1857, the date of the deed by Joseph I. Town to
McCoid, the description of the land as lot 4 in the latter deed was
not adequate to pass to the grantee the new land, and therefore all
the land which was formed afterwards belonged to Still and Joseph
I. Town, and not to McCoid; also that if in point of fact there was
no accretion between July, 1856, and September, 1857, there must
have been accretion subsequently, while some of the successive
grantees held the title, prior to 1870.
But we think that in all the deeds, the accretion passed by the
description of the land as lot 4. In making every deed, the grantor
described the land simply as lot 4, and did not by his deed, nor
does it appear that he has since or otherwise, set up any claim to
any accretion. It must be held, therefore, that each grantor, by
his deed, conveyed all claim not only to what was originally lot 4,
but to all accretion thereto. When McCoid, in 1854, conveyed his
interest in the premises by the description of lot 4, as he had
taken a deed of the undivided half of the premises by the same
description from Joseph I. Town, in September, 1857, and had title
thereby up to the river, his north line was the river, which was
gradually adding land to his land. How much was added during the
time he owned his undivided half he could not tell, and he conveyed
his interest to Coleman without any reservation. The same is the
case with each successive grantor, and each must be held to have
passed by his deed his title to all the land up to the river as the
river was at the date of his deed. When each successive owner took
his title, lot 4 was a water lot, having the rights of wharfage,
landing, and accretion, and although new land was formed during his
ownership, yet when he conveyed the premises, he conveyed them by
the same
Page 134 U. S. 198
description by which he had received the valuable rights
referred to.
The decree of the circuit court is
Affirmed.
MR. JUSTICE MILLER did not take any part in the decision of this
case.
