St. Paul and Pacific Railroad Company v. Schurmeir
ERROR to the Supreme Court of Minnesota.
Schurmeir filed a bill in one of the inferior courts of Minnesota, to enjoin the St. Paul and Pacific Railroad Company from taking possession, and building its railroad upon, certain ground in the city of St. Paul, Minnesota, bordering on the Mississippi, and originally a fractional section of the public lands. The place was alleged, by Schurmeir, to be a public street and landing.
The railroad company justified their entry, as owner, in fee of the locus in quo. The issues between the parties were tried by a referee, who found both facts and law in favor of Schurmeir. The facts, so found, being undisputed, the case was removed, for decision on them, to the Supreme Court of the State. That court affirming the referee's judgment, the case was here for review.
The case-to understand which well, it is necessary to refer, in a preliminary way, to certain statutes of the United States governing the surveys and descriptions of public lands-was thus:
Certain statutes enact,  that the public lands shall be subdivided into townships, sections, and quarter sections, and that these subdivisions shall be bounded by north and south and east and west lines, unless where this is rendered impracticable by meeting a navigable water-course, &c. The boundaries, and contents of the several sections and quarter sections, are to be ascertained in conformity to the following principles: 'The boundary line actually run, and marked in the surveys returned, shall be established as the proper boundary lines of the sections or subdivisions for which they were intended; and the length of such lines, as returned, shall be held and considered as the true length thereof; and the boundary lines which shall not have been actually run and marked as aforesaid, shall be ascertained by running straight lines from the established corners to the opposite corresponding corners; but, in those portions of the fractional townships where no such opposite corresponding corners have been, or can be fixed, the said 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 water-course, . . . or other external boundary of such fractional township.'
There is apparently no law which requires what is hereafter spoken of, and called the 'meandering' of water-courses; but the acts of Congress, above referred to, do require the contents of each subdivision to be returned to, and a plat of the land surveyed, to be made by the surveyor-general; and this makes necessary an accurate survey of the meanderings of the water-course, where a water-course is the external boundary; the line showing the place of the water-course, and its sinuosities, courses, and distances, is called the 'meander-line.' 
The original act of 17th May, 1796, providing for the sale of these lands, enacts, 'that all navigable rivers within the territory to be disposed of, shall be deemed to be, and remain public highways; and in all cases where the opposite banks of any stream, not navigable, shall belong to different persons, the stream and the bed thereof shall be common to both.' 
The premises on which the railroad company sought to enter, were situated upon a fractional section, duly surveyed by the government surveyor, in October, 1847; the survey duly approved in March, 1848, and returned to the General Land Office. This fractional section was designated by this survey as lot 1, in section 5, township 28, north of range 22, west of the fourth principal meridian. It was represented by the plat thereof, as bounded on the north by the east and west sectional line, on the west by the north and south sectional line, and on the only other remaining side by the Mississippi River. It was this river that interposed and made this section a fractional one.
At the time of the survey, there was a parcel of land (called by the counsel on one side, a sand-bar, reef, or 'tow-head,' and by the counsel on the other, an island) lying along the shore of the river, about four feet lower than the main land of the fraction, and with a channel or slough between it and the main land. This depression was about 28 feet wide, and the bar or island, in its extreme width, was about 90 feet. Its extreme length was about 160 feet. The main body contained 9.28 acres; this parcel, 2.78 acres.
In high water this parcel of land outside was completely under water; in medium water it was exposed to view, and the water flowed through the depression; but, at very low water there was no flow of water through the depression. It lay in pools in the depression. Very low water-mark was thus the exterior part of the bar or island, and the landing-place for boats plying on the Mississippi had always been the south or river side of island.
In the government survey, no mention of, or reference to, this bar or island, was in any way made in the field-notes, plat, or map. The fractional parcel, as already said, was represented as lying immediately upon, and bounded by, the Mississippi River.
The surveyor, however, in meandering the course of the river along the fraction, ran the 'meander-lines' along the main land of the shore, and not along the southerly line of this bar or island, and thus did not include the space occupied by this depression, and bar or island, in his estimate of the quantity of land contained in the fraction. The fieldnotes showed that the line running 12.83 south, from corner sections 5 and 6, intersected the bank of the Mississippi River, and
that a meander-post was there set; also, that at a point 16.90 east of said section corner, the township line intersected the left bank of the Mississippi River, and that a meander-post was there also set. The meander-line was run, beginning at last-mentioned meander-post, 'thence up stream, south 61, west 6.50; south 54, west 6.00; south 46, west 5.00; south 40, west 3.96, to line of sections 5 and 6, at lower end of St. Paul.'
In March, 1849, the United States sold and conveyed the land to one Roberts; the patent describing the lot (along with another fractional section, styled No. 2, not connected with this case) as containing so many acres, 'according to the official plat of the survey;' a plat which, as already said, did not present the bar or island, in any way, nor the channel or slough between, but presented the river as the boundary; much as in the map on the page opposite (page 276).
In the same spring, Roberts surveyed, laid out, and platted the whole of this fractional parcel (including the bar or island, and intervening depression, in his plat, and as a part of the grant of his patent) into towns, blocks, lots, streets, &c., constituting a part of the town of St. Paul, and caused said plat to be duly recorded; an act which, by the laws of Wisconsin (at that time in force in Minnesota), operated to vest the fee simple of every donation or grant to the public, or any corporation or body politic, in it, for the uses therein named, and no other; and which declared, that 'land intended to be for streets, alleys, ways, commons, or other public use, . . . or for any addition thereto, shall be held in the corporate name, in trust, to and for the uses and purposes set forth, and expressed or intended.' Roberts subsequently sold to Schurmeir two lots, designated on the plan as lots Nos. 11 and 12, in block 29. All the space in front of this block, and between this block and the river, was designated as Landing; and as soon as St. Paul was organized into a city, it exercised municipal control over the space, established a grade, and caused the place to be more or less graded; maintaining it as a landing. Schurmeir's two lots, and the whole of the so-called 'landing,' were situated upon what had been the slough or channel.
In 1856, and after this depression had been filled, and the whole space between the lots and the river, including the depression, and the bar or island, had been graded by the city, and traces of both had been effaced, the space originally occupied by this bar or island, was surveyed by a government surveyor, and platted and mapped as 'Island No 11,' in said section 5.
By virtue of this survey, the railroad company claimed the title under a Congressional land grant of May 22, 1857.
The important question in the case was, therefore, this: By what exact line was the grant bounded on the river side? Was it—
1. By either the medium filum of the Mississippi, or the outside of the sand-bar or island? Or was it—
2. By the meander-lines run by the surveyor?
If by either of the former, the railroad company had no right.
If by the latter, Schurmeir had none.
A minor question was, whether-supposing Roberts to have owned the parcel originally-he had, or had not, under the statutes then in force in Minnesota, divested himself of such right by recording his town plot?
Mr. T. A. Hendricks, for the railroad company, plaintiff in error:
The land system of the United States was designed to provide, in advance, with mathematical precision, the ascertainment of boundaries. The purchaser takes by metes and bounds. These rules are settled, and accordingly the township line at the north, the section line at the west, and the meander-line on the remaining side-a line beginning and ending at posts, and running by courses, described between them-must constitute the boundary here. In no other way can the rules be conformed to. By the pretensions of the opposite counsel, the purchaser would pay for a little more than nine acres, and get but little less than twelve. The lines marked on the ground must thus control. 
But, admit that the land comes to the bank edge. This is the most the other side can pretend; for the pretension of carrying the grant to the middle line of a vast river, is untenable in our country, even at common law,  and plainly in the face of the statute of May 17, 1796, and other statutes. What, then, is the bank of a river? It is decided in Pennsylvania,  to be 'the continuous margin, where vegetation ceases.' The shore is, on the other hand, decided to be 'the pebbly, sandy, or rocky space between that and low water-mark.' This island, when it was an island, and not bottom of the river, was four feet below the bank. When in the condition most favorable to the case of the other side, it was 'sandy space,' between very low water-mark and the bank; not bank, but shore.
In fact, however, it was not, rightly considered, even shore. In one condition of the river, it was river bottom; in another-the ordinary condition-an island in the river; and only in a third, and rare condition-'very low water'-did it approach even the character of shore.
We may add, that Roberts, by his dedication of the land for a landing, parted with his property, and that his grantee, Schurmeir, has no title in it, and cannot now restrain the railroad from entering on it.
Mr. Allis, contra:
1. The meander-lines are not boundaries. They are not even known to the laws or acts of Congress. The term 'meander' is simply used to designate certain lines, run by the surveyors, along the windings of water-courses, bounding fractions, for the purpose of ascertaining and returning the quantity of land in such fractions. There is no provision in the acts of Congress for meandering a water-course, or running any line along its bank. But the quantity of land in a fraction must be returned; hence, alone, the surveyor runs lines along the bank.
2. If the surveyor make an error in his return, as to the quantity of the land, or if the quantity is erroneously stated in the patent, this will not affect the grant. The grantee will take according to the boundaries of the land described. 
3. Whether the grant extends to the medium filum of the river, is a point not in the least necessary to be considered; though we believe it does. Most of the authorities which would deny this proposition, concede that the riparian owner takes to low water-mark.  That is all that we need maintain.
4. The record of the town-plot did not make a dedication of land intended for 'streets, alleys, ways, commons, or other public uses,' equivalent to a grant in fee, whatever it might do by a 'donation or grant' marked on the plot. Even if the plot did so make it, the town was bound to hold it for the purpose specified in this case a 'landing'-and Schurmeir, if interested as a citizen, might file his bill.
Mr. Justice CLIFFORD delivered the opinion of the court.
^1 Acts of May 18, 1796, 1 Statutes at Large, 446; May 10, 1800, 2 Id. 73; and February 11th, 1805, 2 Id. 313.
^2 See the able opinion of Wilson, C. J., in 10 Minnesota, 99, 100, from which this account is extracted.
^3 And s. e act of April 16, 1814, 3 Statutes at Large, 125, as explained by act of Feb uary 27, 1815, Ib. 218.
^4 Bates v. Railroad Company, 1 Black, 204; Walker v. Smith, 2 Pennsylvania State, 43; Younkin v. Cowan, 34 Id. 198; Hall v. Tanner, 4 Id. 244.
^5 Carson v. Blazer, 2 Binney, 475; Bullock v. Wilson, 2 Porter (Alabama), 436; People v. Canal Appraisers, 33 New York, 461; McManus v. Carmichael, 3 Clark (Iowa), 1.
^6 McCullough v. Wainright, 2 Harris, 171; and see Storer v. Freeman, 6 Massachusetts, 435; and Lewen v. Smith, 7 Porter (Alabama), 428.
^7 Lindsey v. Hawes, 2 Black, 554.
^8 Dovaston v. Payne, 2 Smith's Leading Cases, 224-6.