[232 U.S. 186, 187] Messrs. Henry D. Ashley and William S. Gilbert for plaintiffs in error.
[232 U.S. 186, 190] Messrs. Samuel Adams, H. F. Roleson, J. C. Hawthorne, and N. F. Lamb for defendant in error.
Mr. Justice Van Devanter delivered the opinion of the court:
The chief controversy in this case is over the title to about 1,500 acres of unsurveyed lands in Poinsett county, Arkansas, which were part of the public domain at the date of the swamp-land act of September 28, 1850 ( 9 Stat. at L. 519, chap. 84), and the Federal question to be considered is whether, under the operation and administration of that act, these lands have passed from the United States, or are still its property.
Although within the exterior lines of a township surveyed in 1840 and 1841, they, with other lands, were excluded from the survey, were meandered as if they were a lake, and were designated upon the official plat as a meandered body of water called 'Sunk Lands,'-a name frequently applied in that region to areas which subsided during the New Madrid earthquake, a little more than a century ago, and subsequently became submerged. Other unsurveyed areas, designated as meandered bodies of water, were also shown upon the plat. The township was approximately 6 miles square, and the plat bore an inscription to the effect that the total of the surveyed areas was 14,329.97 acres, so the unsurveyed areas represented as water must have amounted to 8,000 acres or more.
After the enactment of the swamp-land act, the state requested that the township be listed as swamp lands, and patented to it under that act, both of which were done, the former in 1853 and the latter in 1858. In requesting the listing, the state described the township as containing 14, 329.97 acres, the total of the surveyed areas as inscribed upon the plat, and in making the list, the Secretary of the Interior took the same total and deducted 514.30 acres in fractional section 16, which already had passed to the state under the school-land grant, [232 U.S. 186, 195] thereby making the listed area 13,815.67 acres. The patent embraced lands in several townships, the portion of the description material here being: 'Township 12 north of range 7 east. The whole of the township (except section 16), containing thirteen thousand, eight hundred and fifteen acres and sixty-seven hundredths of an acre . . . according to the official plats of survey of said lands returned to the General Land Office by the Surveyor General.'
In the state courts the levee district, the plaintiff, claimed title to the lands in controversy under the swamp-land act and an act of the state legislature in 1893 (Laws [Ark.] 1893, p. 172), granting to the levee district 'all the lands of this state' lying within the boundaries of the district; and the defendants opposed this claim upon two grounds: One, that if these lands had passed to the state, the defendants had succeeded to the title by riparian right in virtue of their ownership, under conveyances from the state in 1871, of the fractional sections and subdivisions abutting on the meandered area called 'Sunk Lands;' and the other, that the lands in controversy had not passed to the state, but were still the property of the United States. The trial court sustained the plaintiff's claim and entered a decree accordingly, which was affirmed by the supreme court of the state, the chief justice dissenting. 100 Ark. 94, 139 S. W. 625.
Both courts found as matter of fact from the evidence produced at the trial that at the time of the survey and at the date of the swamp-land act the unsurveyed area designated upon the plat as 'Sunk Lands' was not a lake or permanent body of water, but only temporarily overflowed, and was not distinctly lower or materially different from the adjoining lands; and with this as a premise it was held that the lands in controversy did not pass to the state or to the defendants with the adjoining lands as an incident of riparian ownership, but were con- [232 U.S. 186, 196] veyed to the state by the patent issued in 1858, and thence to the levee district by the state act of 1893
If the patent conveyed these lands to the state, we are not concerned with their subsequent disposal, for that is a question of local law. But did the patent include them? This, of course, is a Federal question. In answering it in the affirmative, the state courts regarded the words 'Sunk Lands,' shown upon the plat, as meaning that unsurveyed area to which they were applied was land, and not water, and also regarded the words, 'The whole of the township (except section 16),' as used in the patent, as embracing all that was within the exterior lines of the township, except section 16, whether surveyed or unsurveyed, and even although meandered and excluded from the survey. We are unable to accede to this view of either the plat or the patent.
Had the plat shown that all the lands were surveyed, it doubtless is true that the words 'Sunk Lands' would not have indicated the presence of a body of water, but would have been taken in much the same way as would such words as 'valley,' 'broken hills,' or 'level plateau.' But the plat showed, as did also the field notes, that the area to which the words were applied was not included in the survey, but was excluded therefrom, and meandered as a body of water, and also that the adjoining sections and subdivisions were surveyed as fractional, as is usual with lands abutting on a lake or similar body of water. Thus, what appeared upon the plat had the same meaning as if this area had been called 'Sunk Lands Lake.' And that the officers of the state and of the United States so understood is shown by the fact that in the proceedings preliminary to the issuance of the patent, as also in the patent, this and similar areas were excluded in specifying the amount of land in the township.
Of course, the words in the patent, 'The whole of the township ( except section 16),' are comprehensive, [232 U.S. 186, 197] but they are only one element in the description, and must be read in the light of the others. The explanatory words, 'according to the official plats of survey of said lands, returned to the General Land Office by the Surveyor General,' constitute another element, and a very important one; for it is a familiar rule that where lands are patented according to such a plat, the notes, lines, landmarks, and other particulars appearing thereon become as much a part of the patent, and are as much to be considered in determining what it is intended to include, as if they were set forth in the patent. Cragin v. Powell, 128 U.S. 691, 696 , 32 S. L. ed. 566, 9 Sup. Ct. Rep. 203; Jefferis v. East Omaha Land Co. 134 U.S. 178, 194 , 33 S. L. ed. 872, 878, 10 Sup. Ct. Rep. 518. The specification of the screage is still another element; and, while of less influence than either of the others, it is yet an aid in ascertaining what was intended; for a purpose to convey upwards of 22,000 acres is hardly consistent with a specification of 13,815.67 acres. Ainsa v. United States, 161 U.S. 208, 229 , 40 S. L. ed. 673, 680, 16 Sup. Ct. Rep. 544; Security Land & Exploration Co. v. Burns, 193 U.S. 167, 180 , 48 S. L. ed. 662, 671, 24 Sup. Ct. Rep. 425; 3 Washb. Real Prop. 5th ed. 427. Giving to cach of these elements its appropriate influence, and bearing in mind that the terms of description are all such as are usually employed in designating surveyed lands, we are of opinion that the purpose was to patent the whole of the lands surveyed, except fractional section 16, and not the areas meandered and returned, as shown upon the plat, as bodies of water. That it is now found, as shown by the decisions below, that these areas ought not to have been so meandered and returned, but should have been surveyed and returned as land, does not detract from the effect which must be given to the plat in determining what was intended to pass under the patent. Niles v. Cedar Point Club, 175 U.S. 300, 306 , 44 S. L. ed. 171, 173, 20 Sup. Ct. Rep. 124; Hardin v. Shedd, 190 U.S. 508, 520 , 47 S. L. ed. 1156, 1158, 23 Sup. Ct. Rep. 685.
As, then, the lands in controversy were not included in the patent, and, under the findings below, did not pass to the state or to the defendants by riparian right with the [232 U.S. 186, 198] adjoining fractional sections and subdivisions, it follows that they remain the property of the United States. Niles v. Cedar Point Club, supra; French-Glenn Live Stock Co. v. Springer, 185 U.S. 47 , 46 L. ed. 800, 22 Sup. Ct. Rep. 563; Security Land & Exploration Co. v. Burns, supra.
But it is said on behalf of the levee district that, even though the lands were not included in the patent, they passed to the state under the swamp-land act independently of any patent, and passed thence to the district under the state act of 1893. The contention is not tenable. The lands were never listed as swamp lands, and their listing does not appear to have been even requested; doubtless because they were not surveyed. Assuming that in fact they were swamp lands, the state's title under the swamp-land act was at most inchoate, and never was perfected. Not only so, but the state relinquished its inchoate title to the United States as part of a compromise and settlement negotiated in 1895, and the relinquishment is binding upon the levee district as a subordinate agency of the state. Little v. Williams, 231 U.S. 335 , 58 L. ed. --, 34 Sup. Ct. Rep. 68. See Carson v. St. Francis Levee Dist. 59 Ark. 513, 533-535, 27 S. W. 590.
The levee district was therefore not entitled to prevail in respect of the unsurveyed lands.