Niles v. Cedar Point Club

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 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:

'4. Said plat showed the northerly line of the mainland portion of said survey, a line with its intersection of each township and section line evidenced by a post placed at such intersection, as the said line was actually surveyed and marked as shown by said certified field notes, beginning on the west line of section 19, in town 9 south, range 9 east, and thence running in a general easterly and southerly, but meandering and tortuous course to and across the south line of section 11, in town 10 south, range 10 east.

'5. The said plat showed the said line of said survey from the west line of said township to a point 2 chains easterly from its intersection of the line between sections 21 and 22 in town 9, range 9, to be the shore of Maumee bay; and from that point southerly and easterly the plat shows this line on the northerly and easterly sides of fractional sections 22, 27, 26, and 25 in town 9, range 9, sections 30, 31, and 32 in town 9, range 10, and sections 4, 9, 10, and 11 in town 10, range 10, to be the boundary of what is called the 'flag marsh' and 'impassable marsh and water.'

'6. As shown in and upon said original plat, somewhat east of north from the point where this line of the survey crosses the north and south quarter line through section 22, town 9, range 9, and about a mile and a half from it, began an island called 'Cedar Island.' This extended northerly for more than half a mile, and then southeasterly to a point opposite the said line along the northerly side of section 25 in said township. A short distance southeast of this another island began and extended southeasterly beyond the north line of section 5, in town 10, range 10, projected easterly. Then there was a narrow inlet. A third island began on the easterly side of this inlet, and extended southeasterly almost to what would be the east line of section 11, town 10, range 10. Between these islands and the tortuous line above described was the space designated 'flag marsh' and 'impassable marsh and water.' No surveyed lines other than the township lines crossed either the intervening marsh or the islands. The northwestern island was named 'Cedar' and was the largest. The plat showed it as contained 53.83 acres, all in town 9, range 9. The one next east of it was marked as 'Sandy Island.' The plat showed that 7.52 acres of it were in town 9, range 9; 28.49 acres in town 9, range 10; and 1.18 acres in town 10, range 10. The southeastern island was marked as 'Crane Island,' containing 18.38 acres, all in town 10, range 10. From the northwest end of Cedar island to the southeast end of Crane island was about 9 1/2 miles. Norman strait separated Cedar and Sandy islands. Lily strait lay between Sandy and Crane, and Crane creek entered the lake at the east end of Crane island.

'The field notes on the plat showed that the circumference of each island was surveyed or meandered. The plat and marginal field notes also show that the southerly edge of the 'flag marsh,' 'impassable marsh and water' was surveyed, and that the lines of the fractional sections southerly of the said marsh and water were identical with the southerly edge of the marsh. The computed areas of the fractional sections and of their respective snbdivisions, as shown upon the said plat, conformed to the area included within the said surveyed lines, and did not nor any thereof include any part of either marsh, water, or islands.'

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:

'16. At the time of the making of the survey by Ambrose Rice the waters of Lake Erie were above their ordinary stage, and there was more than the usual volume of water standing upon the land in controversy herein and flowing to and upon the same from the large bodies of land now in Ottawa, Wood, and Lucas counties, respectively, having their drainage to and through the said premises in controversy herein.

'17. The general character, description, and condition of the said land surveyed by said Marston was by him correctly set forth under the title 'General Description' in the field notes of the said survey so as aforesaid by him certified to the commissioner of the General Land Office.

'That concerning the portion of said survey in town 9 south, range 9 east, reciting, to wit:

'The surface of that part of this fractional township, comprised in this survey, is covered with a deep marsh of grass, canes or reeds, wild rice, etc. Many parts of it, particularly in the south and west parts, are mown for a kind of coarse hay. Other parts are filled with bogs and pond holes that do not dry in summer. It receives the natural drainage from the woods on the south and west, which, without any well-defined channel, finds its way across the marsh to the lake. Again, in heavy gales of wind it is subject to inundations from the lake, which, upon the subsidence of the gale or change of direction in the wind, slowly finds its way out again into the lake. It is bounded along the lake by a sand beach averaging 1 chain in width and 3 feet in height.'

'That concerning the portion of said survey in town 9 south, range 10 east, reciting, to wit:

'The surface of this fractional township is covered with a deep marsh of grass, canes or reeds, wild rice, etc. Much of the south part can be mown for marsh hay, being in a measure drained by a canal that has been constructed in the township south. Other parts are filled with bogs and pond holes that do not dry in summer. It receives the drainage from woods on the south and west, which spreads over the entire surface and without any positive channel finds its way to the lake.

'Again the township is subject to inundations from the lake during heavy gales of wind, which, upon the termination of the gale or a change in the direction of the wind, slowly finds its way back into the lake.

'This fractional township is bounded on the northeast by Lake Erie; between the lake and the marsh proper is a sand beach, averaging 3 feet high and 1 chain in width, generally covered with bushes and small trees of oak, poplar, willow, and cottonwood.'

'That concerning the portion of said survey in town 10 south, range 10 east, reciting, to wit: 'The description for this township must necessarily be similar to that of the two preceding townships. The surface of that part of the township comprised in this survey is one large swampy marsh, land, generally very wet and boggy. Its surface is covered with grass, canes (or joint grass), wild rice, and such like marsh productions, reaching to a height of 10 or more feet. Some parts, especially on sections 10 and 11, can be pastured, but the larger portion is filled with bogs and pond holes, connected by narrow and tortuous channels.

'It receives the drainage from the woods on the south and west, and is subject to inundations from the lake. On the prevalence of strong southwest winds this water flows from the marsh into the lake, and upon the occurrence of northeast winds the lake floods the marsh. The principal outlets and inlets are Crane creek and Ward's canal. This canal is an improvement made by C. B. Ward, of Detroit, Michigan, on section 4, and running across section 5 for the purpose of getting vessels and ship timber from his shipyard on section 5. It is built without locks and is really only a great ditch. Waterway, 50 feet; depth, 7 feet. The buildings (or sheds) at the fishing stations 4 and 11 are the only other improvements.

'A comparison of the survey made by Ambrose Rice in 1834 and 1835 with that made by John B. Marston in 1881 indicates that Sandy and Crane islands washed somewhat shoreward during the period intervening between the making of said respective surveys.'

Messrs. Henry T. Niles and Frank C. Daugherty for appellant.

Mr. Thomas Emery for appellee.

Mr. Justice Brewer delivered the opinion of the court: