This is a proceeding under the Burnt Records Act of the State of Illinois, by which the defendant in error, Shedd, seeks to establish his record title to certain land adjoining and under a non-navigable lake called Wolf Lake, lying partly in Illinois and partly in Indiana. The plaintiff in error, Hardin, also owns land adjoining the same lake, by succession to a title under patents from the United States, and under these patents makes claims to land now or originally under the lake, which conflict with the claim of Shedd and with the decree of the court. The other plaintiff in error is a grantee of Hardin. The decree having been affirmed by the Supreme Court of the State, 177 Illinois, 123; S.C., 161 Illinois, 462, the case is brought here by writ of error. Mitchell v. Smale, 140 U.S. 406, 410; Shively v. Bowlby, 152 U.S. 1, 9, 10. It seems unnecessary to go into details of the difference, as the main question here goes to the foundation of Hardin's case, and we are against her on that. Her title and a plan of the territory in which lies the disputed land will be found set out in Hardin v. Jordan, 140 U.S. 371.
The claim of the plaintiffs in error to the land below the original water line depends on its having passed by the patent of the United States. The patent to Holbrook, from which they derive an important part of their title, was dated May 20, 1841, long before the Swamp Land Act. At that time the land under the lake, as well as that surrounding it, belonged to the United
The law of Illinois has been settled since Hardin v. Jordan, 140 U.S. 371, and it now is clear, by the decision in this case and later, that conveyances of the upland do not carry adjoining land below the water line. Fuller v. Shedd, 161 Illinois, 462; Hardin v. Shedd, 177 Illinois, 123; Hammond v. Shepard,
Of course, it would result from the Illinois ruling that the survey of the submerged land in 1874, referred to in Hardin v. Jordan, and the conveyances in pursuance of it, may have been good on the Illinois side of the state line, unless the State had got a title before that date under the Swamp Land Act. Whether it did so or not, it is unnecessary to consider in this case.
The land which Shedd gets under the decree of the state court he gets, not in derogation of the foregoing principles, but on findings of fact as to what land was above water at the date of the patents from the United States, 161 Illinois, 469, 470, and as to accretions to that land by the gradual drying up of the water at a later date. 161 Illinois, 473, 494. We perceive no need for considering the decree in detail.
MR. JUSTICE WHITE, with whom concurs MR. JUSTICE McKENNA, dissenting.
This case, in some aspects, involves contentions supposed to have been finally decided by this court in Hardin v. Jordan,
The controversy presented by this record originated from conflicting claims made in two suits (subsequently consolidated) to the bed of Wolf Lake, between Mrs. Hardin (who was the plaintiff in Hardin v. Jordan) and one of her grantees, as owners of the border lots, Shedd, (grantee of Mitchell, the plaintiff in Mitchell v. Smale,) also as an owner of border lots, and various claimants under patents of the United States based upon the survey of the bed of the lake. Although the judgment below was against the second patentees, they have not prosecuted error. The Supreme Court of Illinois declined to apply the rule laid down by this court because it held that this court had in Hardin v. Jordan and Mitchell v. Smale misconceived the state law. By the local law it was held that the lot owners by the conveyance to them of lots abutting on the meander line took no title whatever to the bed of the lake. It was, however, decided that the effect of the conveyance by the United States to private persons of the border lots was to transfer the title of the bed of the lake to the State of Illinois. The doctrine of the Supreme Court of Illinois on the subject is not only shown in the opinion of that court in this case, Fuller v. Shedd, 161 Illinois, 462, but also in the subsequent case of Hammond v. Shepard, 186 Illinois, 235. In the first case, Fuller v. Shedd, after expressly deciding that the State of Illinois did not acquire title to the bed of the lake under the swamp land act, the court declined to hold "that the grant to the riparian owner conveys the bed of non-navigable (meander) lake, and make its waters mere private waters;"
"The law of this State, as repeatedly announced, is that shore owners on meandered lakes, whether navigable or non-navigable, take title only to the water's edge, the bed of the lake being in the State.
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"No shore owner can take away from the State its title to the former bed of the lake unless he can establish by proof that the dry land was formed by the water receding from his shore line."
Under the doctrine thus stated, having treated the bed of the lake as the property of the State, the court determined the rights of the parties by reference to principles of accretion which it deemed applicable to the property in the bed of the lake owned by the State. Now, in Kean v. Calumet Canal & Improvement Company, ante, p. 452, quite recently decided by this court, the doctrine announced in Hardin v. Jordan was re examined, and it was in effect held that that case, whilst recognizing that the ownership of the beds of non-navigable lakes on the public domain was in the United States, simply decided that when the United States sold lots bordering on such a lake the question whether or not the bed of the lake passed by the grant of the border lots was to be determined by the principles of conveyancing in force under the local law of the State where the lake was situated. Now, as the settled rule in Illinois is that under the principles of conveyancing prevailing in that State no title to the bed of a lake passes to the patentees of the United States by the sale of border lots, I do not perceive how the United States has been divested of its title to the bed of Wolf Lake. To say that, although on the principles of conveyancing under the local law, the bed did not pass, nevertheless, because the United States sold the border lots, the State of Illinois thereby became the owner of the bed of the lake, is,
The suggestion that the considerations just stated are immaterial, because, even although by the local law, the United States did not convey to the patentees of the border lots title to the bed of the lake, it may have parted with its title to the bed by the swamp lands act, involves a departure from the settled construction of the swamp lands act to which attention was called in the dissent in Kean v. Calumet Canal & Improvement Company, ante, p. 452. Besides the disturbance of vested rights to which it seems to me such a suggestion must give rise, it must be remembered that it is directly in conflict with the opinion of the Supreme Court of Illinois in this very case, where it was expressly declared that the State did not take title to the bed of Wolf Lake under the swamp lands act, because as a matter of fact the converse had been explicitly decided by the Secretary of the Interior in a contest before the Land Department to which the State of Illinois was a party. The result of the suggestion as to the swamp lands act then, as I see it, is to cause the State of Illinois to become the owner of the bed of the lake under the swamp lands act, in derogation of the act of Congress, contrary to the rulings of this court and of the Supreme Court of the State, and in disregard of the express findings of fact made by the Secretary of the Interior when he approved the second survey, and also when he rendered the decision on the contest to which the State of Illinois was a party.
I fail to perceive if, as a matter of conveyancing under the local law, the title to the bed of the lake did not pass with the sale of the border lots, how the United States has lost its title. If it be conceded that the view of the local law, announced by this court in Hardin v. Jordan, was a mistaken one, and that the local law must be taken to be what the lower court held it to be in this case, then it seems to me the only foundation upon which the title of the United States to the bed of the lake can be disputed has disappeared, since in my opinion the theory of accretion which the court below applied cannot be
I am authorized to say that MR. JUSTICE McKENNA concurs in this dissent.