This controversy is between two claimants to land, one holding a patent therefor from the United States and the other claiming it by virtue of its contiguity of other land for which [175 U.S. 300, 301] a United States patent was held. A statement of facts was agreed upon by the parties, and that statement, with some slight additional testimony, formed the basis of a decree in the circuit court in favor of the plaintiff, which was affirmed by the court of appeals (54 U. S. App. 668, 85 Fed. Rep. 45, 29 C. C. A. 5), to review which last decision this appeal was taken.
The facts are these: In the years 1834 and 1835 Ambrose Rice, a deputy surveyor, surveyed and subdivided into sections and quarter sections fractional township 9 south, in range 9 east, and townships 9 and 10 south, in range 10 east, the same being situated in the northern part of Ohio and adjacent to Lake Erie. From his field notes, duly certified to the surveyor general of that land district, the latter prepared a correct plat of the townships, showing the subdivisions thereof, and marking all the actual survey lines and the corners designated by said survey. By the field notes and plat certain sections appear to be fractional, the line on the north being meandered in a general direction from the northwest to the southeast. The tract to the north of this line was described as 'flag marsh' and 'impassable marsh and water.' Paragraphs 4, 5, and 6 of said agreed statement of facts are as follows:
In July, 1844, patents for several of these fractional sections facing on this marsh were issued to Margaret Bailey, under whom the appellant claims. The patents each recite the number of acres granted, and each states that the tract is a fractional section 'according to the official plat of the survey of said lands returned to the General Land Office by the surveyor general, which said tract has been purchased by the said Margaret Bailey.'
In 1852 the state of Ohio applied under the swamp land act of September 28, 1850 (9 Stat. at L. 519, chap. 84), for several thousand acres of lands within the state, among them these marsh lands. This application was, so far as these lands are concerned, rejected by the land department, the official minute on the application being 'not swamp and nearly all sold.' In 1881 John B. Marston, under instruction from the General Land Office, surveyed and subdivided into sections and quarter sections the area marked upon the surveyor general's plat, above referred to, as 'flag marsh' and 'impassable marsh and water.' The field notes of this survey were returned to the General Land Office and approved, and a plat made, as required. Thereafter the lands thus surveyed and platted were patented by the United States, and the title so conveyed passed by subsequent deeds to the plaintiff below, appellee here. Disclosing the condition of these lands, paragraphs 16 and 17 of the statement of facts are as follows:
Messrs. Henry T. Niles and Frank C. Daugherty for appellant.
Mr. Thomas Emery for appellee.
Mr. Justice Brewer delivered the opinion of the court:
But little can be added to the opinion of the court of appeals, whose conclusions we approve. The meander line [175 U.S. 300, 306] run by surveyor Rice along the northern borders of the tracts patented to Margaret Bailey may not have been strictly a line of boundary (St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 19 L. ed. 74; Hardin v. Jordan, 140 U.S. 371, 380 , 35 S. L. ed. 428, 432, 11 Sup. Ct. Rep. 808 and 838; Horne v. Smith, 159 U.S. 40 , 40 L. ed. 68, 15 Sup. Ct. Rep. 998), but it indicated that there was something which had stopped the survey, which limited the area of the land which the United States was proposing to convey, and left to subsequent measurements the actual determination of the line of separation between the land conveyed and that which the government did not propose to convey. Generally, these meandered lines are lines which course the banks of navigable streams or other navigable waters. Here, it appears distinctly from the field notes and the plat that the surveyor Rice, stopped his surveys at this 'marsh,' as he called it. These surveys were approved and a plat prepared, which was based upon the surveys and field notes, and showed the limits its of the tracts which were for sale. The patents, referring in terms to the survey and plat, clearly disclose that the government was not intending to and did not convey any land which was a part of the marsh. '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 Land Office by the surveyor general, thereby adopting the plat as a part of the instrument.' Hardin v. Jordan, 140 U.S. 371 , 35 L. ed. 428, 11 Sup. Ct. Rep. 808 and 838. In James v. Howell, 41 Ohio St. 696, 707, the supreme court of Ohio, speaking of these very patents and this marsh, said: 'The 'meander' line along the southerly border of the marsh was, in fact, intended to be the boundary line of the fractional sections.'
It may be that surveyor Rice erred in not extending his surveys into this marsh, but his error does not enlarge the title conveyed by the patents to the surveyed fractional sections. The United States sold only the fractional sections, received only pay therefor, an amount fixed by the number of acres conveyed, and one receiving a patent will not ordinarily be heard to insist that by reason of an error on the part of the surveyor more land was bought than was paid for, or than the government was offering for sale. [175 U.S. 300, 307] It may be true that under his contract, the requirements of the statute, and the regulations of the land department, Rice should have extended his surveys to the shores of Lake Erie, but he did not do it; he stopped at the borders of this marsh, and the land department, in effect, approved his action. He evidently thought that the marsh was to be treated as a body of water, a conclusion not unwarranted in view of the finding of excessive high water at that time, but a conclusion which other findings show was not correct. And it may be remarked in passing that the letter of the statute would not limit the surveys to the shores of the lake, for 2395, Rev. Stat., declares that surveys shall be by running lines at right angles 'so as to form townships of 6 miles square unless where the line of an Indian reservation, or of tracts of land heretofore surveyed or patented, or the course of navigable rivers, may render this impracticable; and in that case this rule must be departed from no further than such particular circumstances require.'
But Lake Erie is not an Indian reservation, nor a tract of land heretofore surveyed and patented, nor a navigable river. It is true 2396, which provides how the boundaries and contents of the several sections, half sections, and quarter sections of the public lands of the United States shall be ascertained, says, after stating the rule where all the corners are established, that 'in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the boundary lines shall be ascertained by running from the established corners due north and south or east and west lines, as the case may be, to the watercourse, Indian boundary line, or other external boundary of such fractional township.'
If this recognizes any other external boundary than that which is indicated in 2395 it does not prescribe what that external boundary shall be; and if the land department treats either a marsh or a lake as such external boundary who can declare that its action is void?
It is impossible to hold that the lower courts erred in the conclusion that this marsh was not to be regarded as land [175 U.S. 300, 308] continuously submerged, either under Lake Erie, a navigable lake, and in that case belonging to the state of Ohio (Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Weber v. Harbor Comrs. 18 Wall. 57, 21 L. ed. 798; McCready v. Virginia, 94 U.S. 391 , 24 L. ed. 248), or under a pond or other similar body of nonnavigable inland waters, and therefore generally the property of riparian owners. It was called a marsh by Rice, the first surveyor, is so styled on the plat, and the conditions as disclosed by the agreed statement indicate that it was a body of low, swampy land, partly boggy and partly dry, sometimes subject to inundations from Lake Erie or the overflow of the adjacent streams, but not permanently covered with water.
Of course, if the fractional sections patented to Margaret Bailey did not border on some body of water there were no riparian rights, and if the conclusion of the trial court that this marsh was land (for swamp and boggy land is to be treated as land) was correct, then whatever changes may have come to the marsh-whether it became more or less subject to overflow-would not alter the fact that the rights of Margaret Bailey, the patentee, were limited to the very lands which were conveyed to her, and for which she paid, and did not extend over the meander line into the territory north.
But, it is urged that the fact that a meandered line was run amounts to a determination by the land department that the surveyed fractional sections bordered upon a body of water, navigable or non-navigable, and that, therefore, the purchaser of these fractional sections was entitled to riparian rights; and this in face of the express declaration of the field notes and plat, that that which was lying beyond the surveyed sections was 'flag marsh,' or 'impassablemarsh and water.' But there is no such magic in a meandered line. All that can be said of it is that it is an irregular line which bounds a body of land, and beyond that boundary there may be found forest or prairie, land or water, government or Indian reservation.
With respect to the contention that the character of this marsh, as it was found to have been, shows that it should have passed to the state of Ohio under the swamp land act, [175 U.S. 300, 309] it is enough to say that the state of Ohio applied for it as such, that the application was denied, that this denial was made in 1852, that the land was never patented to the state and without such patent no fee ever passed (Michigan Land & Lumber Co. v. Rust, 168 U.S. 589 , 42 L. ed. 591, 18 Sup. Ct. Rep. 208), that subsequently the land department treated it as land subject to its control, as public land of the United States, had it surveyed, sold and patented. Whatever claims the state of Ohio may have cannot be litigated in this suit. The legal title passed by the patent to the appellee's grantors, and that title is certainly good as against a stranger with no equities.
We see no error in the decree, and it is affirmed.