Kean v. Calumet Canal and Improvement Co., 190 U.S. 452 (1903)

Mr. Justice Holmes

delivered the opinion of the court.

This is a proceeding to-, quiet title brought by the Calumet Canal and Improvement Company in a court of the State of ' Indiana. The company got judgment, which was affirmed by the Supreme Court of the State, 150 Indiana, 699, and the ease is brought here by writ of error. The land in question is land .borderingon and extending under certain- non-navigable water up to the state line, the Illinois side of which was the subject ' of the decisions in Hardin v. Jordan, 140 U. S. 371, and Mitchell v. Smale, 140 U. S. 406. But the facts in this ease are somewhat different. The Calumet company claims title through mesne conveyances from the State of Indiana. The State of Indiana got its title under the Swamp Land Act, September 28, 1850, c. 84, 9 Stat. 520; Rev. Stat. §§ 2479 et seq., and patents

of the United States dated 1853, purporting to bejn pursuance of that act, and referring to the official plat of survey, which was made in 1834. The patent set forth describes “ the whole of fractional sections ” enumerated and bordering on the water, in which sections lies the disputed land. The State afterwards conveyed by the same description-. It is not denied that the company got the land above the waterline, as shown in the plat referred to, but it is denied that it got'more. The water has been receding and drying up, so that the question is important. The defendant set up a later survey in 1815 of the land which was covered by water in 1834, and is covered, to a less extent, still, and patents from the United States in pursuance of the same, for tracts below the original water line. They deny that the State ever owned this land, or, if it did, that it conveyed it, and they allege the later survey to be conclusive.

On general principles of conveyancing the State would have acquired the land .in controversy here by a conveyance from the United States describing the upland according to the survey, because the local law of Indiana and the common law as understood by this court are the same, so far as this case is concerned. Stoner v. Rice, 121 Indiana, 51; Hardin v. Jordan, 140 U. S. 371. The case is stronger if the land passed under the Swamp Land Act, as has been held by the state court with Legard to this and similar patents. Mason v. Calumet Canal & Improvement Co., 150 Indiana, 699; Kean v. Roby, 145 Indiana, 221; Tolleston Club of Chicago v. Clough, 146 Indiana, 93; Tolleston Club of Chicago v. State, 141 Indiana, 197. See Mitchell v. Smale, 140 U. S. 406, 414.

The making of a meander line has no certain significance. French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, 52. It does not necessarily import that the tract on the other side of it is not surveyed or will not pass by a conveyance of the upland shown by the plat to border on the lake. It is not always a boundary. Railroad Co. v. Schurmeir, 7 Wall. 272; Hardin v. Jordan, 140 U. S. 371, 380; Mitchell v. Smale, 140 U. S. 406, 414; Horne v. Smith, 159 U. S. 40, 43; Grand Rapids & Indiana Railroad v. Butler, 159 U. S. 87, 93. In this case its immediate import -was only to indicate the contour of the lake. It would

seem, to be sure, that the settled understanding of the land department has been that in cases like the present the meander line marked the limit of the grant. But probably the cases are comparatively rare in which that understanding was acted on by an attempt subsequently to convey the land under water on the further side of the line at dates before the transactions with which weffiave to deal. The title to such land was not considered of much importance in the early days or worth the trouble of an independent survey. See Newsom v. Pryor, 7 Wheat. 7, 11. The United States was more anxious for settlers than for revenue from that source. It is not necessary to consider how we should decide, the case with our present' light if the question were a new one. It is not new. For twelve years the decisions in Hardin v. Jordan and Mitchell v. Smale have stood as authoritative den larations.of the law. Probably in most cases the statute of limitations has cured the defects of title which those cases may have shown. Meantime many titles must have passed on the faith .of those decisions. The United States can meet them by the form of its conveyances. It seems to us that it would be likely to do more harm than good to allow them to be called in question now.

It is said that the land under water was not embraced in the survey of 1834. It Would seem from the plat and the field notes that the sections and dividing lines were clearly marked off and posts set. The case is similar to Kean v. Roby, 145 Indiana, 221, where the survey was pronounced sufficient.. No difficulty was felt on the ground that the survey did not cover the submerged land in Hardin v. Jordan, 140 U. S. 371. But furthermore, the land was selected as “ swamp and overflowed lands ” by the State. It not appearing otherwise, the selection must be pre..'sumed to have included the land overflowed, and if so it was confirmed to the State by the act of March 3, 1857, c. 117, 11 Stat. 251; Rev. Stat. § 2484. The confirmation encounters none of the difficulties of cases like Stoneroad v. Stoneroad, 158 U. S. 240. The land surrounding the water, at least, was surveyed, so that the identification of the submerged portion was absolute. We are of opinion that the State of Indiana got a title to the whole land in dispute.

If the State of Indiana got a title, it gave one. There is not much controversy on this point. We should follow the decision of the state court in this case so fa,r as this question is concerned, if there was no other evidence of the state law. But the'láw of Indiana is shown by the other cases cited above to be clear on this point. >

The resurvey by the’ United States in 1874 does -not affect the Calumet company’s rights. As the United States already had conveyed the lands, it had no jurisdiction to intermeddle with them in the form of a second survey. Hardin v. Jordan, 140 U. S. 371, 400; Grand Rapids & Indiana Railroad Co. v. Butler, 159 U. S. 87, 94, 95; Railroad Co. v. Schurmeir, 7 Wall. 272, 289.

Of course, we shall hot undertake to revise the finding of the state courts that the statute of limitations had not run in favor, of the plaintiffs in error, and that, if any one is to profit ■ by it, the Calumet company would prevail.

Mr. Justice White,

with whom concurs Mr. Justice McKenna,

dissenting.

The importance of the question which this cause involves and the far reaching and injurious consequences which, in my opinion, must arise from the continued application of what seems to me to be the erroneous theories upon which it is now decided,'not only constrain me to dissent, but cause me to state fully the reasons by which I am controlled.

The controversy is between opposing claimants to lands once a part of the beds of certain non-navigable bodies of waters,, styled lakes — and which shall be hereafter referred to by such designation. Both parties asserted title under patents of the United States.

In 1834 surveys were made by the United States of townships 37 north, in ranges 9 and 10 west, second principal meridian, lying in Lake County, in the extreme northwestern portion of the State of Indiana. Township 37 in range 9 was bounded on the west by township 37 in range 10, and the latter was bounded on the west by the State of Illinois. From

the eastern boundary of township *3T* in- range 10 there was less than a mile intervening to the Illinois boundary on the west. In «©asetjuenee, the sections or fractional sections appearing on the. .plat of survey of that township were .only the extreme easterly tier -.of sections, being those numbered 1, 12, 18, 24, 25 and 36. A copy of a portion of the government plat of survey of ithe towvndhips named, in which are embraced the lands whose title is .in dispute, is inserted for .convenience of reference oh opposite page.

The -easterly of the two bodies of water, lying partly in both townships, is known, as Lake George or Mud Lake. The westerly body is called Wolf Lake. As shown by the plat, the lines of survey were not actually run across the water of the lakes, and, consequently, no attempt was made to subdivide the lands in tihe;tihein beds of the lakes into legal subdivisions. The lines of-survey wore in fact run around the rim of each lake, and the fractional lots resulting from the meander line were given numbers, .as was customary in such cases.

The land about the margin of the lakes was very flat, and the average depth of water at the túne of the surveys was conjectured to be about five or six feet.

None .of the fractional-lots abutting on the two lakes in the •townships in question had been disposed of by the United States prior to the passage of the swamp land act of September 28, 1850. Thereafter,.the State.of Indiana transmitted a list of lands which ®t desired should be patented to the State under said act, and the list embraced the .portions of the townships in which Wolf Lake and Lake 'George were situated. This list, however, referred only to entire sections, took no note of the plat of suryey and .made no reference to the fractional lots abutting on the lakes or the<other subdivisions-of sections. In the approved list of selections made by the Secretary of the Interior the general description .of the lands as given in the state lists was followed, except that where by the meander line shown on the plat of survey it appeared that a section was made fractional, the section was termed a fractional section, and the quantity of land shown on the • jftat to be contained in each minor subdivision or frac-rtional seetkm was specifically stated.

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A patent dated March 24, 1853, was issued to. the State of Indiana for the approved selections. The mode in which the-lands were described in the patent is illustrated in the following excerpt:

After the description of the lands was the following:

Soon after acquiring title in this manner to the border lots, the State of Indiana conveyed them, by the plat numbers, to private individuals.

While the record dogs not show the causes which led to the < drying up of the .beds of"the two lakes within the meander lines on thé plats of surveys of 1834, it is nevertheless certain that -about the year 1874 the waters of 'these lakes had in greát part disappeared. In the years 1874 and 1875 various persons settled on the uncovered lands referred to, with the intent of acquiring .title under the homestead law. Application was made to the Interior Department' for a survey thereof. In virtue of this application, a survey was made in 1875 — known as the Walcott. ■ survey — and a plat'was drawn exhibiting the subdivisions thereof. The confirmation of this survey was resisted in the Land Department by one who had acquired title to border lots from the State of Indiana, on the ground that the United States had no land to survey in the beds of the lakes, as the effect of the .conveyance by the United States to the State had been'to pass ' title to the beds of the lakes. This controversy before the Land Department was finally disposed of on February 23,1877, by the' Secretary of the Interior, in favor of the validity of the Walcott survey. Thereafter patents for the lands in the beds of the lakes covered by the survey were issued by the United States.

In- 1895, the Calumet Canal and Improvement Company brought an action in the Lake Circuit Court of Indiana, to'

quiet its asserted title to certain of these border lots and its alleged title as riparian owner to land in front thereof, once part of the beds of the lakes, and, upon a second trial of the action, obtained judgment. On. appeal, the Supreme Court .of. Indiana affirmed the judgment, and the cause was then brought to this court on a writ of.error prosecuted by claimants under the Wolcott survey, based upon the contention that the decision of the Supreme Court of Indiana was against a title and right specially set up “ under the statutes, patents,, deed of con-, veyance and authority of the United States, of America.”'. In deciding against the validity of the Wolcott survey and the patents to land in the beds of the lakes based on such survey the Supreme Court of Indiana said (p. 699):

It becomes necessary, therefore, to refer to the case of Kean v. Roby, upon which the Supreme Court of Indiana rested its. conclusion. As, moreover, the comprehension of the doctrines involved in that case necessitates a consideration of the course of previous decisions in Indiana relative to the subject involved, I shall review the Indiana cases preceding Kean v. Roby, in order, as far as may be, to an exact elucidation of the legal principles by which the decision of this case was below com trolled.

Ross v. Faust, (1876) 54 Indiana, 471, involved the- title to land under the' bed of a non-navigable river. The land abutting on the stream had been surveyed and the stream had been.

meandered. Tbe question ivas whether patents of the United States conveyed land under water within thé meander lines. Determining the construction of’ the patent solely by reference to the laws of the United States, the court decided that, as the stream was in fact non-navigable, the holder of the patent to the border lots had title to the center of the stream despite the meander line.

Ridgway v. Ludlow, (1877) 58 Indiana, 248, involved a'controversy respecting the ownership of land once forming part of the bed of anon-navigable lake. The land, bordering on the lake had evidently been acquired from the United States and the lake had been meandered. The rule in Ross v. Faust was applied, the court saying:

Edwards v. Ogle, (1881) *76 Indiana, 302, presented the foEow-ing state of facts: On a plat of survey'of a section of land, which was in great part covered by the waters of a pond, the banks of the pond were shown as meandered, but the lines of the sections, half sections and quarter sections were extended across the pond by dotted lines. A fractional portion of the southwest quarter, represented as containing 39 acres — the dry land outside of the meander — was patented by the United States in 1845. In 1851 the United States, under the swamp land act, executed to the State of Indiana a patent for the east half of the southwest quarter, being within the meander line. In 1858 the United States issued a patent to one Ogle for the Avest half of the same quarter section. Edwards, as oAAmer of the thirty-nine acre tract, asserted a right to the center of the pond, which if alloAved Avould have absorbed the land claimed by Ogle. Edwards Avas confined to the actual quantity of land specified in the patent. Ross v. Faust* was distinguished, the court remarking of that case: “ The bed of the river had not been surveyed as a part of the public domain, but, on the theory that White Diver was a navigable stream, the government surveys had been terminated at the margin thereof.”

State v. Portsmouth Savings Bank, (1886) 106 Indiana, 435,

459, involved the question whether conveyances of fractional lots bordering on Beaver Lake, in Newton Comity, Indiana, passed title to land under the bed of the-lake. The controversy was between the State claiming the bed of the lake and certain private individuals who deraigned title from the State, claiming that as the State had transferred to them rights derived under patents from the United States, their rights were coterminous with the patent and extended across a meander line to. the center of the lake. Beaver Lake, ivas a body of water covering about seventeen thousand acres of land, and averaging from five to seven miles in length and from two to four miles in width. The border lands had been surveyed in 1885 by authority of the United States, and were subject to private entry. In making the survey the same was extended around the lake and a meandering line established. As a necessary result of the meander line fractional lots-were shown on the plat around the margin of the lake. Under the swamp land act the border lands, by the government subdivisions, were selected by the Secretary of the Interior and patented to the State of Indiana.

The Supreme Court of Indiana declared that it was not necessary “ to determine whether the patents of the United States to the State for the fractional lots bordering upon and surrounding the lake, being grants from one gpvernment to another, by their own force carried the bed of the lake. ” Be-viewing previous decisions of this court, construing the swamp land act, the Indiana court held that that act was a grant- in prmenti. It'was further held that, although the bed of Beaver Lake was not embraced in the list of selections made by the State, yet by the acts of its officials, immediately after' the" grant to it of the border lands, the State had treated the bed' of the lake as swamp and overflowed land, and constructively selected the same, and that an act of Congress, approved January 11, 1878, 17 Stat. 409, releasing and quitclaiming the bed of Beaver Lake to the State of Indiana, did not operate as a grant, but simply as a confirmation of the prior selection, thereby perfecting the title as indefeasible.

The court came next - to consider the claims of the grantees of the State of border lots, described in the patent from the

State according to-the plat of survey which had been made by the United States.. It was declared that state patents for border lots must be construed -with reference to the power conferred úpon state .officials by the state law, and- not by the rule, which would govern a conveyance by a private individual; and applying this rule,, it was held that the patents for border lots carried to the grantees “no more of the swamp and overflowed; lands than were included in the several surveyed subdivisions bounded by the lake?

Stoner v. Rice, (1889) 121 Indiana, 51, was a controversy between owners of border lots as a meandered non-navigable lake claiming under patents of the United States and- patentees of the United States - under a subsequent survey of the bed of the lake. Despite its previous ruling in Ridgway v. Ludlow, supra, it was now held that the rule giving a riparian owner of fractional lots abutting on a meander line title to the'thread or center'of the stream, was not applicable.- The case was-decided upon what the court assumed to be thelaw of the United States governing surveys of the public domain, the court said (p. 54):

The court declared that the doctrine thus announced,by it was not in conflict- with its previous ruling in Edwards v. Ogle.

Brophy v. Richeson, (1894) 137 Indiana, 114, was a contest between the .patentees of a fractional tract of dry land termed the southeast fractional quarter of a certain section, lying north and east of a meandered lake, and the patentees under a later survey made by the United States of the bed of the lake. It' was held — following Stoner v. Rice—that the claimant under the first patent took title to all the land within the quarter section, whether dry or covered by the waters of the lake.

Tolleston Club v. State, (1894) 141 Indiana, 197, was an action brought by the State of Indiana for the recovery of lands within the meander lines of a United States survey. The claim was that the State had acquired title to the lands within the meander upon selections made under the swamp land act of certain land, for which patents of the United States had .been issued ter the State of Indiana in 1853. Although the State had conveyed the border lots which she had acquired from the United States, the theory of th¿ claim of the State was that, despite this conveyance, she remained the owner of and was entitled to recover the land within the meander, because it was deemed, in accordance with the ruling in the Portsmouth Bank case, (involving Beaver Lake,) that the State, in transferring the border lots, by their designation on the government plat of survey, hád retained to herself and not conveyed her title to the land under' water. . The defendants asserted title derived from the United States under patents issued subsequent to 1870, based upon .a. survey made of the bed of the water by reason of an act of Congress, which is excerpted in the margin.1

It suffices to remark that it was held that, although the United States survey showed a meander line and fractional lots or sections thereon, that this meander line, under the laws of the United ‘ States, ivas not a boundary,' because, undei said laws, its sole purpose was, not to limit the survey in any way, but simply to indicate how much dry land there was in the subdivision purchased. Consequently, it was determined that the land, both dry and wet, should be treated as having, been wholly surveyed, because the lines of survey might be protracted across the meander so as to make complete surveyed sections, embracing both the dry and the wetland. The enumeration in the plat of the quantity of land contained 'in the subdivisions of the sections was considered as immaterial, and the doctrine of Stoner v. Rice was applied.

Whilst.the claims of the patentees under the subsequent United States survey of the land within the meander was therefore rejected, and the act of Congress -directing the survey was decided to be void, it was yet held that, as the State must recover upon the strength of her own title,- she was not' entitled to judgment for any land within the meander lines, because the grants made by the State of the fractional lots passed title to the legal subdivision beyond the meander lines, upon the theory of survey above noticed and the controlling effect of the decision in Stoner v. Rice. A petition for rehearing was filed on behalf of the State. An opinion denying such rehearing is reported in 141 Indiana, 214. The principal contention on behalf of the State was that “ the court erred in holding .that the land in controversy had been surveyed either by the government of the United States, or by the. State of Indiana, at the time of. the

sale of such border lots by tbe State.” The court,' however, observing that this contention was dangerous ground for the State to stand upon, considered at length the provisions of sections 2395 and 2396 of the Eevised Statutes of the United States, and concluded as follows: ’

The Portsmouth Savings Bank case was distinguished by

the statement that “ Beaver Lake was a large body óf water, •of shallow depth, which had not been surveyéd by the United States government.”

The precise import of the doctrine which, following Stoner v. Rice, the court applied in the case just reviewed is so aptly por-ti'ayed in the case of Tolleston Club v. Clough, 146 Indiana, 93, that it is here noticed out of its chronological order. The .plaintiff commenced his action to.quiet title to land derived from the State through patents issued, to the State by the United States under the swamp land act. The lands in controversy were part of those which were involved in the case of Tolleston Club v. State, supra. The exact situation of the lands is shown on the following plat which is reproduced from the opinion of the Supreme Court of Indiana:

To convey a clear conception of the situation and character of the land, a passage is here excerpted' from the opinion in Tolleston Club v. State, ub. sup.:

The plaintiff, «deriving title ¡from the patents of the -United States covering the fractional-lots outside of «tbe meander line, ■cláiméd to-be the owner of ..the marsh land inside-of the meander up to the thread of the stream marked on the plat as a' river. ' j '

The court followed its ruling in Tolleston Club v. State, and said:

By this ruling the lots abutting on the meander were made to cross that line, embrace the marsh land lying between them and the river, and would have extended across the river, so as to include practically the entire river in those sections, except where in the. sinuosity of the river it crossed the section line. As, however, the court found that the owner of the lots abutting on the meander had only claimed to the bed of the river, it limited his rights in consequence of the pleadings to that extent, thus preventing the acquisition of the entire section where.the section line was beyond the bed of the river.

I now come to the case of Kean v. Roby, (1896) 145 Indiana, 221, upon the authority of which case the Supreme Court of Indiana affirmed the judgment of the trial court in the case at bar. Kean v. Roby was an action brought by «the owner of lands abutting on Wolf Lake, to -quiet her title to land once part of the bed of the lake. The plaintiff claimed title to the border lots as well as- to the . lake bed land by -virtue of the survey made in 1834 and a patent from .the United States-to the State, made in 1858, under the swamp land act. The defendants claimed title under patents, based upon the Walcott survey of 1875, of-lands once part of the bed of the lake. Despite the fact that -on the plat of survey the lake was meandered and there were no sectional corners to which' the lines could be protracted, the court held that -the case was covered by the Tolleston Club decision, because it was deemed -that, the field notes showed that it would be possible to protract the lines so.as to make regular and complete sections,

and it was therefore held that the owner of the border lots was entitled to the adjacent land under water as well.

It therefore results that the doctrine embodied in the case of Kean v. Roby, and the previous cases commencing with Stoner v. Rice, was the rule applied in the decision of the case now under review, and by which the beds of the lakes were given to the owner of the border lots.

All the cases which' have been recapitulated, I submit, divide themselves into two classes, the first, those prior to Stoner v. Rice; the second, the case of Stoner v. Rice, and those subsequent to it, including the ruling therein made. ■ "Without pausing to ascertain whether the cases in the first class are reconcilable with each other, or those in the second, class can be made to harmonize with those in the first, one thing it seems to me is apparent: that is, that all the cases in both the classes, including the decision in the case at bar, indubitably held — ■

1. That the government of .the United States owned the soil under all bodies of non-navigable water lying within the public domain of the United States, and that the title thereto remained in the United States until it had parted with it pursuant to the laws of the United States; and

2. That in determining whether the United States had parted with title to such lands the Indiana court always decided that' question, not upon the controlling effect of any supposed rule of state or local law, but by what it deemed to be the proper construction of the laws of the United States governing the survey and disposition of the public domain.

The right of the defendants under patents of the United. States, which they specially set up, having been denied, because it was conceived by the court below that no title vested in them under the laws of the United States, it would seem that the question arising for decision is this: Did the court correctly interpret the statutes of the United States ?

This is a Federal question. But it is pressed that what title to the beds of the lakes passed to the State from the United States, either under the swamp land act or in virtue of the pat- ■ ents issued to the' State, is to be determined, not by the law of the United States, but solely by the state or local law; hence it

is insisted the case must be decided by the law which is rightfully applicable to it and not by the law of the' United States, which the Supreme Court of Indiana erroneously deemed was essential to its decision. If I entertained the opinion that the state or local law governed, and in consequence that this case was to be disposed of by considerations inherently local, I would, of course, be obliged to conclude that the. controversy must be judged by that law which properly controlled it and not by the law of the United States, which was mistakenly applied by the lower court. In that view my mind would be driven to the conclusion that this case should be dismissed for want of jurisdiction, since here there is no authority to review the action of the state court in a cause inherently depending upon the state or local law. Nor would this result be changed because the defendants asserted rights to the beds of the lakes under patents of the United States issued subsequent to those relied upon by-the plaintiff, as its ultimate source of title. This follows, since the claim of the plaintiff was that title had passed to it and out of the United States by the swamp land act or the patents issued prior to those upon which the defendants relied. Now, if the question whether the land claimed by both parties had passed to the plaintiff or its grantors, prior to the issue of the patents to the defendants, is to be determined solely by the state or local law, it would follow that a decision of the state court in favor of the right of the plaintiff involved only a conclusion of state or local law broad enough to sustain the judgment, wholly irrespective of the Federal rights asserted by the defendants, and also entirely without reference to the soundness of the reasoning by which the court had reached its all-sufficient and non-Federal conclusion. Before therefore coming to "consider the correctness of the ruling of the' state court concerning the United States law which that court deemed to be decisive, it becomes necessary for me to ascertain whether, as asserted, the question as to the extent of the title derived from the United States by the plaintiff or its grantors is to be determined by the state or local law.

The issue which first arises then is, by what law is the quantity of land which passed to the State under the statutes of the

United States and its patents to be determined, by the law of the United States which conferred on the State whatever rights it acquired or solely by the state or local law, which had no agency or influence in passing rights from the United States to the State? In solving this question it'is at once conceded that there are two cases — decided by this court oil the same day, one' resting upon the other, and therefore virtually but one case— announcing the doctrine that where the United States has conveyed land bordering on the meander line of a non-navigable body of water the question of what rights in the land under water passed from the United States to its grantee is to be determined solely by the state or local law.

The cases referred to are Hardin v. Jordan and Mitchell v. Smale, reported respectively in 140 U. S. 371 and 406. Both cases were actions of ejectment, and the judgments reviewed' were rendered by the Circuit Court of the United States for the Northern District of Illinois.' The plaintiff in each case was the owner, by mesne convéyances, under patents of the United States, based upon surveys made in 1834 of fractional lots abutting on the portion of Wolf Lake situated in the State of Illinois, and they claimed as such abutting owners title to land once forming part of the bed of the lake. The defendants asserted title to the lake bed lands upon the survey made in 1874 by the United' States, and patents issued to them founded upon such survey. The trial court had held that the title of the owners of the border lots extended only to low water, mark and found in favor of the defendants as to the land under water. The ground upon which the decision of the court reversing the trial court in both cases was based is shown in the following excerpts from the opinion Hardin v. Jordan, pages 379, 380, 381 and 384:

found by the court is that tbe lake was not and is not a navigable lake, but a non-navigable fresh, water lake or poncL The patent itself does not contain all the particulars of the survey, but the. grant of the lands is recited to be according to the official plat, of the survey of said lands, returned to the General ¿and Office by the surveyor general, thereby adopting the plat as a part of the instrument. • •

What was the law of Illinois with regard to such grants was

next considered, and it was determined “ that the law of Illinois in this regard is the common law, and nothing else,” and that the title of the owners of border lots on a non-navigable body of water extended to the middle of the water.

If the doctrine announced in the cases referred to is to be here applied, then, as I have said, there is an end to this case and the ivrit should-be dismissed for want of jurisdiction, since in that view there is no substantial Federal contention in this record, for the reason, as I have previously remarked, that the decision of the state question would be broad enough to sustain the judgment without reference to the Federal rights asserted by the defendants. The doctrine, however, of Hardin v. Jordan, as it is given me to understand it, is not only unsound in reason but incompatible with many cases decided in this court prior to and since its announcement, and besides is in conflict with the legislation of Congress and the practice of the government from the beginning. Impressed with the correctness of these views, and entertaining the conviction that the enforcement of the doctrine will lead to the gravest consequences in the future, it is proposed to consider its correctness as an original question, before agreeing that its application in the case at bar is proper. If the result of my investigation be the conclusion that the state or local law should not be applied, contrary to the ruling in Hardin v. Jordan, I shall then proceed to ascertain what are the rights of the parties, when measured by the law of the United States.' If, that investigation develops that the court below erroneously interpreted the law of the United States, and therefore wrongfully denied the title of the plaintiffs in error, it will be left for me to consider -whether it is my duty, under the principle of stare decisis, to give my assent to the legal wrong which, under the views stated, was below committed.

It is unnecessary to elaborately demonstrate the elementary proposition that the United States, under the Articles of Confederation, was the owner of the public domain, however acquired, and that, since the adoption of the Constitution, the United States had also possessed, in full proprietorship, the public domain, from whatever source its title has been derived.

The doctrine on the subject Was summarized by Chancellor Kent, Com. vol. 1, p. 257, in the following language:

The matter was aptly epitomized in Irvine v. Marshall, (1858) 20 How. 558, where it was said (p. 561):

It is also elementary that land covered by water within the public domain of the United States is as much a part thereof as the dry land. Thus, in Illinois Central R. R. Co. v. City of Chicago, (1900) 176 U. S. 646, speaking through Mr. Justice Brown, it was said:

But whilst the ownership of the United States, under the Confederation and under the Constitution, both of the dry land and that covered with water in the public domain, cannot be controverted, .from the beginning it was conceded that the owner

ship of the public domain did not carry with it navigable waters or the land constituting the beds thereof, as such waters were considered within the class of public waters to b¿ forever devoted to the public úse. This was recognized by a provision of the ordinance of 1787 for the government of the Northwest Territory, as follows:

And, early in the history of Congress, prior to the adoption in-1805 of a general system for the survey of the whole public domain of .the United States, the same principle was expressed in the act of May 18, 1796, 1 Stat. 464, the ninth section of which act was as follows:

And because navigable waters were thus from the beginning recognized as public highways and- have ever since been then treated as sacredly devoted to the public use, they were always in principie excluded from the sales of the public domain. But the contrary rule has from the beginning'prevailed as respected non-nayigable .waters, which have always been surveyed and sold and paid for.' I shall take occasion hereafter in reviewing the legislation of Congress to demonstrate this, fact, and therefore to point out that the statement to the contrary in the passage from the opinion in Hardin v. Jordan, which I have already quoted, must have been the result of confounding the general practice- not to sell public waters with the universal practice to survey and sell non-navigable- or private waters. No better illustration of the truth of this statement is required than is shown by this case; where the- United States sold and

surveyed the beds of the non-navigable waters to the defendants below long after the grant of the border lots; and the same condition of things is evidenced by other of the Indiana cases which have been reviewed,'and it is to be observed that ia two of the cases the grant or direction to sell the land covered by non-navigable waters was made by special acts of Congress long after the border lots had been disposed of..

Doubtless as the result of the -provisions treating navigable waters as public highways and from a consideration of the nature and extent of the powers vested by the Constitution in the Federal government and those reserved to the States, and by a consideration of the doctrine of public and private waters, known to the common law, it was early decided and has been ' repeatedly reiterated that the navigable waters and the land under them belonged to the - States — as well the new as the old —in virtue of their sovereignty, to be held in trust for their people subject to.the .power of Congress to regulate commerce.. And in harmony with the principle just stated, it has been decided that such navigable waters and the land under them in the public domain of the United States within the Territories, while subject to be-disposed of by Congress, under the trust for public use, were yet held'by the United States to be transmitted to. the- new States to be formed, and which should, when endowed with statehood; possess them with the same rights and powers as the original. States. -. A. list of the cases in which this doctrine is .stated is appended in the margin.1

The doctrine of the cases was clearly stated in the opinion delivered by Mr. Justice Field, speaking for the court, in Illinois Central R. R. Co. v. Illinois, 146 U. S. 387, 435, where it was said:

And as a necessary consequence of the ownership by the States, in trust, of the navigable waters and the land under them within their territorial jurisdiction, it came to be decided that rights in and incident to such navigable waters or the land under them were to be determined solely with reference to the law of the State in which such navigable waters were situated. Barney v. Keokuk, (1876) 94 U. S. 324; St. Louis v. Myers,

(1885) 113 U. S. 566; Packer v. Bird, (1891) 137 U. S. 661, 690; St. Louis v. Rutz, (1891) 138 U. S. 226, 242; Shively v. Bowlby, (1894) 152 U. S. 1, 40; Grand Rapids & I. R. Co. v. Butler, (1897) 159 U. S. 87; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs., (1897) 168 U. S. 349. But, resting as this last rule necessarily does upon the ownership of such waters .by the States, it can have no application to the proposition that rights in and to the. land beneath the non-navigable waters of the public domain which belong to the United States, are to be determined solely by the law of the States. On the contrary, the decision that the right to the property belonging to the States is to be determined by the state law, because of the state ownership, involves the converse proposition that the effect of a grant of land and waters in the public domain of the United States, which are not navigable, and, therefore, belong to the United States, is to be determined by the law of the United States.

The ownership by the United States of the public domain being thus unquestionable, there can be no room for the contention that the quantity and character of property in the public domain which passes by grant from the United States is not to be exclusively measured by the law of the United States, be-, cause of want of power in the United States over the subject matter of. sale of the public domain. Such a contention would be obviously without merit, in view of the express delegation of authority concerning the property of the United States, contained in the third section of the fourth article of the Constitution, whereby Congress was vested with power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

The comprehensive system of legislation, beginning with the very birth of the government, providing for the survey and sale of the public domain, the administrative machinery devised for executing these laws and the multitude of decisions of this court concerning questions which have arisen thereunder, which have ever been deemed proper to be determined solely from a consideration of the laws of.the United States, to my mind serve to demonstrate the unsoundhess of the proposition that

any other law than that of the-United States measures the nature and extent of title to the public domain conveyed by authority of the laws of the United States.

Besides the implication resulting from the general legislation of Congress concerning the sale and disposition of the public domain, the special statutes granting rights in and regulating the. use of the non-navigable waters upon the public lands are very conclusive. Act of July 26, 1866, 14 Stat. 253; Act of March 3, 1877, 19 Stat. 377; Act of March 3, 1891, 26 Stat. 1095; Act of June 17, 1902, 32 Stat. 388. See, in this connection, Gutierres v. Albuquerque Land & Irrigation Co., 188 U. S. 545, and United States v. Rio Grande Dam and Irrigation Co., 174 U. S. 690, 704, et seq.

I refer to a few cases, in which the complete and' efficient power of the United States and the controlling effect of its laws have been considered and lucidly stated.

In Bagnell v. Broderick, (1839) 13 Pet. 436, it was held that a state legislature was not competent to declare a certificate of purchase of equal dignity with a patent; and it was observed (p. 450);

Wilcox v. Jackson, (1839) 13 Pet. 498, was an action in eject- . ment, brought in a- state court of Illinois, to recover property which had at one time been part of a military post. The plaintiff based his claim upon a register’s certificate, which the laws of Illinois declared to be evidence of title sufficient to support an action in ejectment. In reversing the judgment for the plaintiff, the court, in the course of the opinion, speaking through Mr. Justice Barbour, said (p. 516):

property of the United States has passed, that question must be resolved by the laws of the. United States.; but that whenever, according to those laws; the title shall have passed, then that property, like all other property in the State, is subject to the state legislation, so far as that legislation is consistent with the admission that thé title passed and vested according to the laws of the United States.”

Irvine v. Marshall, (1858) 20 How. 558, was an action originally brought in a court of the Territory of Minnesota. It was alleged that the' defendant Marshall, as the agent of the plaintiff, had purchased, certain public lands with funds belonging to plaintiff and a co-defendant; that Marshall thereafter took a patent certificate in his own name and refused to convey an undivided half of the land to the plaintiff. The bill of complaint was demurred to'upon the ground that the action could not be maintained because of certain provisions of the territorial statute relating to resulting trusts. Applying its previous ruling in Wilcox v. Jackson, the court, in the course of the opinion, speaking through Mr. Justice Daniel, said (p. 563):

In United States v. Gratiot, (1840) 14 Pet. 526, 537, considering an objection that Congress was without power to lease the public lands, it was said (p. *537):*

In Gibson v. Chouteau, (1872) 13 Wall. 92, a state statute of limitations was held ineffective as against a patent from the United States. The court, speaking through Mr. Justice Field, said (p. 100):

In Fink v. O'Neil, (1882) 106 U. S. 272, 283, Mr. Justice Matthews delivering the opinion of the court, considering the fourth section of the homestead act' of May 20, 1862, which provided that no lands acquired thereunder should, in any event become liable to any debt contacted prior to the issuing of the patent therefor, it was declared that Congress by such provision had made the exemption of such lands from.sale on execution a permanent part of the national policy.

In Packer v. Bird, (1891) 137 U. S. 661, the court passed on the extent of the grant contained in a patent of the United States, to land in California, one portion whereof abutted on the Sacramento River. The patent was issued upon a decree of confirmation on a previously existing right or equity of the patentee to the lands, and the survey made pursuant to the

decree was incorporated in the patent. In' the course of the opinion, speaking through Mr. Justice Field, the court said (p. 669):

In Shively v. Bowlby, (1894) 152 U. S. 1, 44, Mr. Justice Gray delivering the opinion, the language just quoted was approvingly referred to; and Mr. Justice Peckham, speaking for the court, in St. Anthony Falls Water Power Co. v. Water Commissioners, (1897) 168 U. S. 349, 362, again approvingly referred to the statement.

How completely these authorities apply to this case becomes, I think, manifest when it is borne in mind that the question is whether the United States by the conveyance which it made of the land abutting on the water parted with the title which it confessedly owned prior to the conveyance, to- the beds of the lakes themselves. The reservation as to rights and incidents referred to .in the excerpt made above from the opinion in Packer v. Bird, is but a reiteration of the doctrine enunciated by the court in the concluding sentences of the opinion in Irvine v. Marshall, supra, and its import is further shown by the opinion in Barney v. Keokuk, 94 U. S. 324. In the latter case, the question presented was what rights in the beds of navigable streams attached to abutting lands conveyed by grants of the United States, and the court said, that as the beds of navigable waters within a State were the property of the State, by virtue of its sovereignty, no rights in the bed of such a stream could be conferred by a conveyance from the United States, unless the state law. vested such rights in the owners of the upland without reference to the source from which the title to the upland had been derived. . If such be -the power of the States as to navigable waters which they hold in' trust, it necessarily follows

that what rights pass by a conveyance from the United States to land under non-navigable waters must be determined by the laws of the United States, to-whom such land and water when situated in the public domain belong in absolute ownership.

The ownership in the United States and its exclusive power under the Constitution to administer and control its property being thus demonstrated, it follows that the state law is not the proper criterion by which to ascertain what the United States conveyed, and, therefore, there' is a Federal question to be examined.

The court below held although the United States survey had not, in fact; been extended beyond the meander line and the lots conveyed by the United States were described as fractional on the plat and in the patents, that the patentees yet took full subdivisions. The principle applied was this: "Where marsh land or non-navigable waters were within a meander line upon which fractional lots abutted, the conveyance of such lots by the United States carries also the marsh land or non-navigable water beyond the "meander to the- extent of a full' subdivision. And in order to accomplish this result the marsh land and water inside of the meander will be considered to have been surveyed, and the lines of the survey be hence protracted across the meander so as to embrace a full subdivision. Whilst this theory was 'plainly irreconcilable with the construction given to the United States law by the Supreme Court of Indiana in cases decided by it prior to Stoner v. Rice, ub. sup., that case announced the rule, and the subsequent-cases in Indiana have sanctioned it down to and including Kean v. Roby, upon which the decision •in this case was rested. In Hardin v. Jordan the doctrine of Stoner v. Rice was -criticised as an unwarranted departure from the ¡common la w^ and it was observed — as was undoubtedly, the case — that the "Indiana court in Stoner v. Rice but adopted the rule announced by the Supreme Court of Michigan in Clute v. Fisher, 65 Michigan, 48, decided in 1887, shortly béfore the de-, cisión in Stoner v. Rice. Now, the opinion in Gluts v. Fisher shows that the Michigan court in that case»but followed a prior riding made by it at the same term, in Palmer v. Dodd, 64 Michigan, 474. The latter case involved title to land within a

section made fractional by a meandered lake or marsh, and the controversy turned upon whether under the law of the United States the rights of the owner of the fractional section extended beyond the meander line. The Supreme Court of Michigan, in deciding the question, said:

It is hence apparent that the rule in Clute v. Fisher was based upon the construction of the lawof the United States expounded by this court in Brown v. Clements, 3 How. 650. But long prior to the decision in Clute v. Fisher this court, in Gazzam v. Phillips, (1857) 20 How. 372, had reviewed the case of Brown v. Clements, and decided that the sale. of a fractional lot did not convey a full subdivision; and-in consequence of this view the case of Brown v. Clements was expressly overruled. In subsequent cases in Michigan the fact that that court had mistakenly predicated its conclusion in Clute v. Fisher on a case which this court had overruled, has been conceded. Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Michigan, 227. But whilst the Michigan court has thus recognized the error into which it inadvertently fell in Clute v. Fisher, the Indiana court has continued to apply that rule, although the sole authority upon which it rests has been repudiated.

Besides the error in the ruling below which is thus shown to

exist, the principle applied’ is moreover in conflict with decisions of this court since the ruling in Gazzam v. Phillips.

In Horne v. Smith, 159 U. S. 40, certain fractional lots appeared .by' the plat of survey to be bounded on the west by the meander line of the Indian River. It was, however, found as a .fact that the water line which was surveyed and made the boundary of the lots was the line of a bayou or savannah, and that there had been an ' omission to make a survey of the land west of the bayou and between it and the main bed of the Indian River. The court, speaking through Mr. Justice Brewer, said (p. 45):

In Niles v. Cedar Point Club, 175 U. S. 300, it appeared that a survey was made in 1834-1835 of fractional townships in the northern part of Ohio, adjacent to Lake Erie. By the field notes and plat certain sections were shown as fractional, because a tortuous meander line \yas shown upon the plat of survey upon which the fractional lots abutted. Across this meander line there was a region of country described as a marsh, and agreed in the statement of facts to be a body of low, swamp land, partly boggy and partly dry, stretching beyond to the shores of Lake Erie. The claim of the owner of the abutting lands was that his boiindary was not the meander at the edge of the marsh, but Lake Erie. By réferring to the plat . previously excerpted in reviewing one of the Tolleston Club cases, showing the situation of the land -which was in contro-•vérsy in those cases, it will be seen that the precise condition passed upon in those cases was involved in Niles v. Cedar Point Club, supra. With the exact situation confronting it,. instead of applying the erroneous rule announced in Indiana, this court held that the purchaser of .the fractional lots abutting on the meander did not take a complete subdivision, but was

confined by the .meander line and got only the land which he bought and paid for. The court, speaking through Mr. Justice Brewer, said. (p. 306):

And the same meaning was attributed to a meander line in French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, 54.

But it is.said the State of Indiana was,entitled to the land under the beds of the lakes in and by virtue of. the act of Congress of September 28, 1850, known as the swamp land act, and, therefore, the error committed below, as to the meaning of the survey and patents, is without importance. But the State could not acquire a legal title to land under the swamp land act except by patent, Niles v. Cedar Point Club, 175 U. S. *309; Brown v. Hitchcock, 173 U. S. 473; Rogers’ Locomotive Machine Works v. American Emigrant Company, 164 U. S. 559, 574; Michigan Land and Lumber Co. v. Rust,* 168 U. S. 589, 592, and such patent must have beén based upon a survey, as the statute clearly contemplated the selection and patenting only of “ legal subdivisions.” Act September 28, 1850, 9 Stat. 519. The survey having stopped at the bank, and the bed of the lake not having been surveyed, platted or subdivided, or the area thereof ascertained,

no'right of the State had attached to the lake bed land under the swamp land act. Indeed, whilst some of the earlier cases in • Indiana construed the swamp land act in direct conflict with the meaning of that act as interpreted by this court in the cases above cited, in a later case, Tolleston Club v. State, the' Indiana court, on the rehearing, pointed out that under a correct construction of the swamp land act a survey and a patent were essential prerequisites to the passing of rights to the State under the swamp land' act.' And the confirmatory act of March 3, 1857, 11 Stat. 251, clearly has no. application, as patents had issued in 1853 upon all £Ke selections made for the State.

The mind cannot fail at once to perceive the serious disturbance to vested rights which must follow from the suggestion that title .passed to the State of. Indiana,-under the swamp land act, to .land belonging 'to the .United States, which at the time of. the issue of the patents to the State had not been surveyed or selected by the- Secretary of the Interior for account of the State, and :whichwasnot parcelled into legal subdivisions until 1875, when the. lake bed land in question Vas surveyed as the property of the Unitéd States.

Jam brought, then, to these questions: Did the United States, by running meander fines', lose her title to the lands within such lines?'-and did she, by issuing.patents for the fractional lots -abutting on lakes which were thus meandered, convey to her grantees title to the center of the lakes ?

It cannot -be successfully controverted that from the beginning, both under the Confederation and since the .adoption of the Constitution, the laws for. the survey and sale1 of the public domain have contemplated as well the survey and sale, of both dry land and .land covered’by water, except’that under navi- . gable waters. ■ This so clearly -results from the text of the statutes that I content myself with making reference to.the sections .of-the Revised Statutes'relating, to the subject and to a citation in the margin of some of the earlier statutes.1

The fact that land under non-navigable waters was subject to survey and sale, and the settled practice of meandering navigable streams and making fractional abutting lots, is aptly illustrated by the case of Surgett v. Lapice, (1850) 8 How. 48. The question presented in that case arose under the act of March 3, 1811, 2 Stat. 662, relating to the mode of surveying public lands in the Territory of Orleans. By the second section of that act power was conferred to depart from the rectangular mode of survey as respected lands abutting on certain waters in the Territory. Such lands were to be laid out into tracts as near as practicable of a specified frontage and depth on a river or bayou, and to be bounded by such lines as the nature of th§ country would render practicable and. most convenient. By the fifth section of the act certain rights of preemption or double concessions in the lands back of tracts fronting on such waters were created under described conditions in favor of the front proprietors,, it being provided in the act that double concessions should in no event extend so far in depth as to include lands fit for cultivation “ bordering on another river, creek, bayou or water course.” Within the area of a double concession involved in the controversy in the case named there was a bayou, and the claim on one. side was that the double concession should extend back ¿nd embrace the lands on the bayou on the theory that it was non-navigable,. while, on the other hand, it, was contended that the bayou should be treated as navigable, and that.the.double concession could not be extended back to embrace the lands bordering on the bayou. Considering the contention that the waters, of the bayou in question, though non-navigable, came within the description of water courses recited in the act, the court said (p. 69):

fer ? The enaotíng clause provides that every person who owns a tract of land ‘ bordering ’ on any river, creek, bayou, or water course, shall have the right of preemption to the back land. The act of 1811 has been construed, in the Department of Public Lands, for nearly forty years, to mean that those owners whose lands fronted on a navigable stream were only provided for; and that the word ‘ border,’ both in the enacting clause and in the exception, meant to front on a navigable water course; that is to say, such waters as are described in the third section of .the act of February 20, 1811, by which Louisiana was authorized to foym a state constitution and government, by which, act the'river Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, were declared to be common highways, and forever free, as well to the inhabitants of the said State, as to other citizens of the United States.

Whilst, of course, the case arose under the act of 1811, the opinion points to the general rule obtaining for years in the Land Department on the subject of the sale of land under non-navigable waters and the exclusion of land forming the beds of navigable or public waters from surveyand sale.

Without presently developing this subject further, I append in the margin1 a reference to acts of Congress, rules of the

Land Department governing surveys and reports of the executive officers charged with the survey and disposition of the public domain, which beyond peradventure show that from, the very beginning of the government up to the decision in Hardin v. Jordan, the general practice was to treat the land under non-navigable waters as the property of the United States, and to survey and sell the same as part of the public domain. Indeed, the proposition just stated is established by the facts disclosed in the various cases decided by the Supreme Court in Indiana which I have at the outset reviewed.

Whilst, as pointed out in Surgett v. Lapice, the existence of a navigable stream was the reason which usually occasioned a meander line, and hence fractional subdivisions, the provisions of the surveying laws, both under the- Confederation and since, contemplated such a meander line also wherever there existed an Indian reservation or private land claim which at the time of the survey was made prevented the extension of the public surveys. But it is apparent that from an early day meander lines and resulting fractional sections came to be established not only when occasioned by navigable rivers, Indian reservations or private land claims, but from other causes. Thus where the deputy surveyor encountered a morass or swamp which he deemed impassable or such a body of non-navigable water as in his judgment it would not be profitable then to survey* a meander line would be run and- fractional sections created. When this practice first originated, and whether the surveyor general of the respective surveying districts applied uniform rules concerning it, the official documents of which I can take judicial notice do not enable me to determine. But certain it is that the practice prevailed prior to 1827. This is evidenced

by a communication from the Land Department to the surveyor general at Washington, Mississippi, dated January 30, 1827, 2 Birchard’s Comp. p. 862, and also by a letter from the Commissioner to the surveyor general at Cincinnati, Ohio, dated March 11, 1836, 2 Birchard’s Comp. p. 962. That complaint was sometimes made that deputy surveyors had mistakenly meandered marsh land, which it was asserted should have been surveyed, subdivided and platted, is also.indicated by the official communication last referred to. The practice as to non-navigable lakes above alluded to is moreover shown by the meandering of the very lakes here in controversy (Wolf and George) as early as 1835, of Beaver Lake and the lands adjacent to the Calumet River about the same time, as shown by the Indiana decision in the Portsmouth Bank and Tolleston Club cases, and of Cross, Soda, Clear and Fairy Lakes in Louisiana in 1839. Sen. Doc. 101, 54 Cong. 1st session.

The general, practice as'to meandering lakes and ponds prevailing in the surveying districts created prior to 1850 is, however,- conclusively shown by the “Manual of Instructions” d^ted February 22, 1855, issued by the Land Department for the guidance of the surveyors and deputy surveyors. ' In a letter transmitting this manual, the Commissioner of the General Land Office directed attention to the fact that it was a revised ,edition of the previous instructions on the subject. Among the instructions contained in this manual was the following, 1 Lester Land Laws, p. 714:

This mánúal was approved by Congress on May 30, 1862, 12 Stat. 409. Like manuals, reiterating the instructions above referred to, were issued on May 3, 1881, January 1, 1890, and June 30, 1894 (p. 57); and the manual of 1894 was approved by Congress on August 15, 1894, 28 Stat. 285.

Whilst the statements alréady made are sufficient to demonstrate that the rule contained in the manuals but substantially expressed the practice prevailing from the beginning, such

fact is additionally demonstrated by the report of the Commissioner of the General Office for 1868, (p.131,) wherein, referring to the rule, he said that in substance it but reiterated the practice always followed in the Land Department.

There is in reason then no support for the proposition. announced in some cases decided by state courts — presumably on the authority of the rule in Hardin v. Jordan—that the stopping of a survey at the margin of a non-navigable body of water and the meandering of the same operate to. deprive the United States of the title to land within the meanders, which the United States had owned before the meander lines were run. To say this would be only to declare that power existed in the executive officers of the government to strip the United States of its property by a mere method of survey, when from the beginning no authority to that effect had been conferred, and no such purpose was contemplated. The practice of the government and the decisions of this court, it seems to me, leave no room for controversy on this subject.. Thus, where a navigable stream was meandered, and within the meander lines were unsurveyed islands forming part of the public domain of the United States, and a request was subsequently made under the provisions of the statutes of the United States for their" survey, 12 Stat. 410, the practice of the department was to comply with -the request and survey and dispose of the islands as parts of the public domain. Report Land Office, 1868, p. 121. And, as said in the same report, in referring to the rule prevailing from the beginning' concerning the meandering of lakes and ponds, where, subsequently to such meandering, lake beds were reported as dry, they “ were surveyed and brought into the market. In all these instances the United States has but exercised the ordinary right of proprietorship.”

The decisions of this court already referred to conclusively establish at the same time that the mere running of a meander line did not affect the title of the United States to the land within such meanders. Without going over all the cases, it suffices to call attention on this point to Gazzam v. Phillips, 20 How. 372, and Niles v. Cedar Point Club, 175 U. S. 300.

Quite recently the subject .was again passed upon in United States v. Mission Rock Company, 189 U. S. 391. In that case there existed in navigable waters a small island, and whilst the title of- the State to the land under the navigable waters was sustained, the' title of the United States to the island was upheld.

The prior title of the United States being unaffected by the meander, did the conveyance by the United States of a specified quantity of land contained in described fractional lots abutting on a meander, the land under water within the meanders being unsurveyed and unplatted, convey by 'legal intendment more than the grant purported to embrace ?

It cannot be controverted that at common law, as elaborately pointed out in Hardin v. Jordan, the owner of land abutting on an unnavigable body of water, by conveying the upland as bounding on the water, without restriction or reservation in the deed, in legal effect caused the center of the stream to be the boundary of the land conveyed. But, it seems to me, it cannot be questioned that the statutes of the United States relating to the disposal of the public domain confer no power whatever to sell unsurveyed public land nor do such statutes invest courts with the authority to enlarge the grants actually specified in the patents of the United States. A-grant by the United States is to be interpreted by the statutes of the United States, and therefore is not subject to be enlarged by any principle of conveyance beyond the express intendment of the statute under the authority of which the grant is made. The difference between the rules of construction applicable to grants made by a government and the granK.made by an individual is that grants of the government are to be strictly construed in its favor and against the grantee; in other words, that nothing passes by the grant but that which is necessarily and expressly embraced in its terms.

The doctrine on this subject was aptly stated by the court in Shively v. Bowlby, speaking through Mr. Justice Gray, where it was said (152 U. S. 10):

by tide water, and would have been the same as it is if the grantor had been a private person. But this is not so. The rule of construction in the case of such a grant from the sovereign is quite different from that which governs private grants. The' familiar rule and its chief foundation were felicitously expressed by Sir "William Scott: ‘ All grants of the Crown are to be strictly construed against .the grantee, contrary to the usual policy of the law in the consideration of grants;' and upon this just ground, that the prerogatives and rights and emoluments of the Crown being conferred upon it for-great purposes, and for the public use, it shall not be intended that such prerogatives, rights and emoluments are diminished by any grant, beyond what such grant by necessary and unavoidable construe-tion shall take away.’ The Rebeckah, 1 C. Rob. 227, 230. Many judgments of this court are to the same effect. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544-548; Martin v. Waddell, 16 Pet. 367, *411; Central Transportation Co. v. Pullman's Car Co.,* 139 U. S. 24, 49.”

Applying this doctrine to the lands in question, as’the law of the United States conferred no authority to transfer unsurveyed land and confined the patentee to the land actually described in the patent as strictly construed, it follows that by the issue of its patents for fractional lots abutting on the water the. United States did not transfer the title to the beds of the lakes in question within the meander lines.

And the Land Department in executing the acts of Congress and Congress itself in dealing with the subject have so uniformly manifested the purpose that the grants of the United States to land bordering on a non-navigable body of water should not convey the land under the water belonging to the United States beyond the limits of the land actually expressed in the patent as conveyed, that it seems to me the statutes for the disposition of the public domain should be read as if they contained an express provision to that effect.

I have already shown the rule prevailing from the earliest day for the meandering of non-navigable lakes and ponds, and in doing so called attention to the report of the Commissioner of the General Land Office made in 1868, in which he stated

that it had been the constant practice from the beginning, after lakes had been meandered and on the lakes becoming dry, to survey and dispose of the beds thereof. As evidencing this practicó, I call attention to the following: .

The Land Department, on July 13, 1874, Copp’s Public Land Laws, 1875, p. 765, issued direction's which were to govern the survey of the beds of non-navigable lakes and other like bodies of water which had been meandered at the time of the original survey and which had become suitable for survey and sale. ‘As the circular of instructions related only to districts where the office of surveyor general had been abolished and could not have been intended to create a rule.in such districts different from that obtaining in other districts, the legitimate inference from the instructions'is that it was intended to put in effect in such districts the practice usual in other districts where the office of surveyor general had not been done away with. This view finds support in the prelude to the letter forwarding the circular of instructions, which says : “ As inquiries arise in regard to the survey of the beds of meandered lakes or other similar bodies of water in districts where the office of surveyor general ha.s been discontinued, the following is communicated,” etc. The instructions which followed authorized the survey of the beds of such lakes as the property of the United States, when the waters had “ so permanently receded or dried up as to leave within the unsurveyed area dry land fit, in ordinary seasons, for agricultural purposes.” The remainder of the •instructions dealt with the mode of proceeding to have a survey made and title obtained by individuals.

Here, again, as in the case, of the rule of 1855, concerning the meandering of non-navigable lakes, the fact that it but in substance formulated the practice prevailing from the beginning, is shown by the report of the Commissioner of the General Land Office made in 1877, Report, Land Office, p. 11, where, referring to the practice of the department as to surveying islands situated in navigable waters within a meander and the circular in respect thereto issued- in 1868, and also referring to the circular of July 13, 1874, above referred to, it was said :

in their substance, but were simply a formulation of the preexisting practice of the office theretofore administered with reference to the class of lands to which they were applicable.”

It is then established that from the very beginning of the government, until at least the date of the circular just referred to, the practice was, after non-navigable bodies of water had been meandered, when the beds .thereof became uncovered, to dispose of such beds as the property of the United States, separately from the former border lots. As the record does not disclose'the number of instances in which this practice was observed during nearly one hundred years prior to Hardin v. Jordan, I may not state them, but, as no single instance to the contrary appears, it seems to me that the statement in Hardin v. Jordan, that the contrary rule had always prevailed, is left without any support whatever, and must have arisen from confounding the uniform practice not to sell the channel of navigable rivers-, which belonged to the States, with the uniform practice to the contrary as to non-navigable waters, which belonged to the United States. But, the acts of Congress on the subject are so clear that they leave no room for substantial controversy, and they, in effect, amount to a legislative approval of the construction of the'laws of the United States affixed by the administrative officers to those laws from the very foundation of the government. Thus, on July 1, 1870, 16 Stat. 187, after the sale of border lots abutting on the meander of a marsh and the Little Calumet Biver, Congress provided for the survey and sale of the lands within the meanders. So, also, after the patenting to the State of Indiana of the fractional lots abutting on Beaver Lake, Congress, by act of January 11, 1873, 17 Stat. 409, granted the bed of the lake to the State. Again, by the act of February 19, 1874, 18 Stat. 16, the bed of a meandered lake, known as Tarkio Lake, situated in Holt County, Missouri, was conveyed to the county, with a reservation, however, that the county should make title to such person as might have settled upon any portion of the land once part of the bed of the lake, under thé homestead and preemption laws. Tet a further illustration, which, because of its brevity and importance, is ex

cerpted in full. Congress passed an act, approved on December 21, 1874, 18 Stat. 293, which reads as follows:

But, it is said, although it be conceded that the patentee, under the law of the United States, was confined to the land within the actual boundaries of the fractional lots conveyed, nevertheless if, as a matter of conveyancing, a grant by an individual would be construed under the state law as extending beyond the dry land to the center of the water, such construction should be applied to the patents of the United States. This, however, but asserts the same proposition which I have already fully considered, and whilst seemingly accepting the true meaning of the law of the United States and the interpretation given to it from the beginning, proceeds to overthrow it.

To argue that because conveyances made by individuals are controlled by the law of the States, therefore conveyances made by the United States are likewise so controlled, involves, as I see it, not only a non seyuitur, but besides amounts to denying, so far as the public domain is concerned, that there is a government of the United States having complete ownership ■and supreme power in the premises. The suggestion that courts as a matter of convenience will determine by the state-

law the extent” of a grant made by the United States is without force, since courts have no power upon their conception of convenience to deprive the United States of its property by resorting to the laws of a State in order to divest thé title of the United States in and to property which it owns, and which it has never voluntarily parted with if its own laws be applied. ' Moreover, the argument of convenience, when inherently considered, is without merit, since it rests on the assumption that for the purpose of convenience it will be held that what property passed by a grant of the United States is to be measured by a variable standard, the divergent laws of the several States, instead of the law of the United States operating generally throughout the United States, thus creating uncertainty and confusion by causing it to come to pass that a grant made by the United States in virtue of the authority conferred by the statutes of the United States will mean one thing in one State and a wholly different thing in another.

As pointed out by this court in Irvine v. Marshall, 20 How. 558, 563, one of the very objects of the provision of the Constitution conferring ample power upon Congress with respect to the property of the United States was to prevent this very condition of things. In other -words, the proposition is that for the sake of assumed convenience a rule of interpretation should be resorted to to bring about the very condition of inconvenience which it was the purpose by the constitutional provision in question to guard against.

Conceding, however, arguendo, that a grant by the United States should be construed as a matter of conveyancing by the local law prevailing in a particular State, it nevertheless' seems to me clear that the conclusion which thé court reaches is erroneous. As has been shown in the Portsmouth Bank case the Supreme Court of Indiana expressly decided that a conveyance of border lots by the State was to be governed, not by the rules of conveyancing applicable to private individuals, but that the power of the state officers was to be ascertained' from the statutes of the State alone; consequently, it was decided that where the State had conveyed the lots abutting

on Beaver Lake by the exact description contained in the patents of the United States, such, conveyances gave no right to the bed of the lake, because power existed in the officers of the State only to sell lands which had been regularly surveyed and platted. In other words', the local decisions in Indiana establish the exact distinction between the rule of conveyancing applicable to individuals and those controlling the grant by a government, which was pointed, out by this court in the passage from .the opinion in Shively v. Bowlby, previously quoted.

Surely, if it be the rule in Indiana that the construction of a grant made by the State of its public lands is to be controlled by the state statutes, it should not now be held that a grant by the United States of its lands situated in Indiana is not to be construed by the statutes of the United States, but by the rules of conveyancing applicable to private grants. In other words, that in dealing with the lands of the United States the government is to be subjected to the local law of Indiana and yet at the same time be deprived of the rights which are accorded by that law to the State, regarded as a government. To now so hold, it seems to me, is but to declare that it is within the province of the local law to strip the United States of its governmental attributes and reduce it to the condition of a mere private individual. This difficulty'cannot be avoided by suggesting that in this particular case the Indiana courts have decided that the transfer of the border lots carried. the beds of the lakes, and hence.it must be construed that such land passed by the local law.’ As has been previously demonstrated, the decision of the Supreme Court of Indiana in this case was in effect predicated on its previous rulings in Stoner v. Rice and the Tolleston Club cases. In those cases it was declared that the doctrine previous^ announced in the Portmouth Bank case was not overruled, but the court proceeded upon the theory that that case was inapplicable, because it held in the subsequent cases that there had been in those cases a survey of the land under water at the time the border lots were conveyed by the United States. This was based not upon any local law, but upon the law of the United States as construed by the state court. That

construction being overthrown by the decision of this court in Gazzam v. Phillips and the many other cases in this court which have followed it, it results that by the Federal law, upon which the court based its decision, the beds of the ladees did not pass. And that this result was understood by the Supreme Court of Indiana is shown by the opinion on the rehearing in the Tolleston Club case, where it was expressly declared that if the theory of survey announced by the court was incorrect, it was its opinion that the bed of the lake did not pass and title thereto remained in the United States. The decision now announced, therefore, holds that the question whether the beds of the lakes passed is to be determined by the local law as a matter of conveyancing. When it develops by the decision of the Indiana court that under the local law, as a matter of conveyancing, the beds óf the lakes did not pass it is then in effect decided that the beds did pass, because it has been decided by the Supreme Court .of Indiana that there had been a survey under the law of the United States, although the fact that there had been none conclusively results from a line of decisions of this court which are not now questioned. It comes then, as my mind sees it, to this : The beds of the lakes did not pass by the local law, and they did not pass by the Federal law correctly construed; but, although passing by neither the Federal nor the local law, they must yet be held to have passed because of a principle of law which it is impossible for me to state, because my mind does not perceive it.

Pretermitting, however, this view, and considering the case as controlled by the rule of Hardin v. Jordan, it only remains to determine whether, under the principle of stare decisis, my duty is to assent to its application in the case at hand. Undoubtedly, since Hardin v. Jordan was decided rights of property may have accrued predicated on the ruling made in that case, but it is also unquestionable that rights of property which had vested prior to that ruling under the acts of Congress, and the settled construction and practice of the government prevailing for almost a century would be divested if that case were applied. . Indeed, the case in hand is but an illustration of this fact, since patents of the United States to land once forming

part of the beds of the lakes which, are in controversy in this case were issued prior to the decision in Hardin v. Jordan. Two classes of rights of property then must be considered — the one resting on the true rule existing from the' foundation of the government, and the other upon the mistaken theory of Hardin v. Jordan. I do not feel at liberty to indulge in the conjecture that the rights which were brought into existence during a century are less important than those which may have arisen in the comparatively short period since the decision in Hardin v. Jordan. Putting this view aside, if only, the rights of those who had actually received the patents of the United States for the beds of the lakes which had once been meandered were concerned, it might be that I should consider it my duty to accept as controlling, under the rule of stare decisis, the decision in Hardin v. Jordan, and thus deprive the plaintiffs in error, whose rights are here at issue, of their property, and this upon the assumption, that the legislative department of the government would rectify the wrong which would be thus inflicted. My mind, however, cannot escape the conviction that the consequence of adhering to the doctrine of Hardin v. Jordan cannot be limited merely to the rights of those who may have in the past actually acquired from the United States title to land once forming the beds of meandered lakes. On the contrary, that doctrine strips the United States of the title to the bed of every pond or lake which was meandered during nearly a century which preceded the decision in Hardin v. Jordan, where the lots bordering on such meandered lakes had been disposed of by the United States. This shows the inadequacy of the suggestion that the United States may, by a change of the form of conveyancing, obviate the doctrine now maintained. Whatever be the change in the rules of conveyancing, whenever the bed of a meandered lake hereafter becomes fit for sale, the question must recur and call for a reiteration of the ruling now made. Under these circumstances, the line upon which I should act seems to me to have.already been plainly pointed out by the court in Gazzam v. Phillips, 20 How. 372, supra. There the court, as I have said, having been called upon to consider the correctness of the rule announced by it twelve years

before in Brown v. Clements, 3 How. 650, and having concluded that that case had been wrongly decided, was required to determine whether it was its duty under the rule of stare deeisis to perpetuate an erroneous principle or apply a correct one.. In deciding to follow the latter course, the reason which controlled to the conclusion is so directly applicable to the subject matter of this case, and was so frankly and ably stated, that I excerpt a passage from the opinion-, as follows (p. 378):

Concluding that the patents of the United States to the State of Indiana for the fractional lots abutting upon Wolf Lake and Lake George, did not convey title to land under the water, and that the patents subsequently issued by the United States, based upon the Walcott survey of 1875, purporting to. pass the title land to once a part of the beds of the lakes were valid, I dissent.

I am authorized to say that Me. Justice McKeNNA joins in this dissent.