ing districts created prior to 1850, is, how-to such meandering, lake beds were report- "3. You are also to meander, in manner aforesaid, all lakes and deep ponds of the area of 25 acres and upwards; also naviga. ble bayous; shallow ponds, readily to be drained, or likely to dry up, are not to be meandered." This manual was approved by Congress on May 30, 1862 (12 Stat. at L. 409, chap. 86). Like manuals, reiterating the instructions above referred to, were issued on May 3, 1881, January 1, 1890, and June 30, 1894 (p. 57); and the manual of 1894 was approved by Congress on August 15, 1894. 28 Stat. at L. 285, chap. 288, U. S. Comp. Stat. 1901, p. 1474. Whilst the statements already made are sufficient to demonstrate that the rule contained in the manuals but substantially expressed the practice prevailing from the be[497]ginning, such "fact is additionally demonstrated by the report of the Commissioner of the General Office for 1868 (p. 131), wherein, referring to the rule, he said that, in substance, it but reiterated the practice always followed in the Land Department. The decisions of this court already referred to conclusively establish at the same time that the mere running of a meander line did not affect the title of the United States to the land within such meanders. Without going over all the cases, it suffices to call attention on this point to Gazzam v. Phillips, 20 How. 372, 15 L. ed. 958, and Niles v. Cedar Point Club, 175 U. S. 300, 44 L. ed. 171, 20 Sup. Ct. Rep. 124. "Quite recently the subject was again passed [498] upon in United States v. Mission Rock Co. 189 U. S. 391, ante, 865, 23 Sup. Ct. Rep. 606. In that case there existed in navigable waters a small island, and, whilst the title of the state to the land under the navigable waters was sustained, the title of the United States to the island was upheld. The prior title of the United States being unaffected by the meander, did the conveyance by the United States of a specified quantity of land contained in described fractional lots abutting on a meander, the land under water within the meanders being unsurveyed and unplatted, convey by legal intendment more than the grant purported to embrace? It cannot be controverted that, at common law, as elaborately pointed out in Hardin v. Jordan, the owner of land abutting on an unnavigable body of water, by conveying the upland as bounding on the water, without restriction or reservation in the deed, in legal effect, caused the center of the stream to be the boundary of the land conveyed. But, it seems to me, it cannot be questioned that the statutes of the United States relating to the disposal of the public domain confer no power whatever to sell unsurveyed public land, nor do such statutes invest courts with the authority to enlarge the grants actually specified in the patents of the United States. A grant by the United States is to be interpreted by the statutes of the United States, and there fore is not subject to be enlarged by any principle of conveyance beyond the express intendment of the statute under the authority of which the grant is made. The dif ference between the rules of construction applicable to grants made by a government and the grant made by an individual is that grants of the government are to be strictly construed in its favor and against the grantee; in other words, that nothing passes by the grant but that which is necessarily and expressly embraced in its terms. There is in reason, then, no support for the proposition announced in some cases decided by state courts, presumably on the authority of the rule in Hardin v. Jordan, -that the stopping of a survey at the margin of a non-navigable body of water and the meandering of the same operate to deprive the United States of the title to land within the meanders, which the United States had owned before the meander lines were run. To say this would be only to declare that power existed in the executive officers of the government to strip the United States of its property by a mere method of survey, when from the beginning no authority to that effect had been conferred, and no such purpose was contemplated. The practice of the government and the decisions of this court, it seems to me, leave no room for controversy on this subject. Thus, where a navigable stream was mean dered, and within the meander lines were ansurveyed islands forming part of the public domain of the United States, and a request was subsequently made under the provisions of the statutes of the United States for their survey (12 Stat. at L. 410, chap. 90), the practice of the department was to comply with the request and survey and dispose of the islands as parts of the public domain. Report Land Office, "It was argued for the defendants in er1868, p. 121. And, as said in the same re- ror that the question presented was a mere port, in referring to the rule prevailing question of construction of a grant bounded from the beginning concerning the meander-by tide water, and would have been the[4] ing of lakes and ponds, where, subsequently same as it is if the grantor had been a pri The doctrine on this subject was aptly stated by the court in Shively v. Bowlby, speaking through Mr. Justice Gray, where it was said (152 U. S. 10, 38 L. ed. 335, 14 Sup. Ct. Rep. 551): vate person. But this is not so. The rule of construction in the case of such a grant from the sovereign is quite different from that which governs private grants. The familiar rule and its chief foundation were felicitously expressed by Sir William Scott: All grants of the Crown are to be strictly construed against the grantee, contrary to the usual policy of the law in the consideration of grants; and upon this just ground, that the prerogatives and rights and emoluments of the Crown being conferred upon it for great purposes, and for the public use, it shall not be intended that such prerogatives, rights, and emoluments are diminished by any grant, beyond what such grant by necessary and unavoidable construction shall take away.' The Rebeckah, 1 C. Rob. 227, 230. Many judgments of this court are to the same effect. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544-548, 9 L. ed. 773, 822-824; Martin v. Waddell, 16 Pet. 367, 411, 10 L. ed. 997, 1013; Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 24, 49, 35 L. ed. 55, 64, 11 Sup. Ct. Rep. 478." Applying this doctrine to the lands in question, as the law of the United States conferred no authority to transfer unsurveyed land, and confined the patentee to the land actually described in the patent as strictly construed, it follows that, by the issue of its patents for fractional lots abutting on the water, the United States did not transfer the title to the beds of the lakes in question within the meander lines. And the Land Department, in executing the acts of Congress, and Congress itself, in dealing with the subject, have so uniformly manifested the purpose that the grants of the United States to land bordering on a non-navigable body of water should not convey the land under the water belonging to the United States beyond the limits of the land actually expressed in the patent as conveyed, that it seems to me the statutes for the disposition of the public domain should be read as if they contained an express provision to that effect. I have already shown the rule prevailing from the earliest day for the meandering of non-navigable lakes and ponds, and, in doing so, called attention to the report of the Commissioner of the General Land Office made in [500]1868, in which he stated *that it had been the constant practice from the beginning, after lakes had been meandered and on the lakes becoming dry, to survey and dispose of the beds thereof. As evidencing this practice, I call attention to the following: other districts, the legitimate inference from the instructions is that it was intended to put in effect in such districts the practice usual in other districts where the office of surveyor general had not been done away with. This view finds support in the prelude to the letter forwarding the circular of instructions, which says: "As inquiries arise in regard to the survey of the beds of meandered lakes or other similar bodies of water in districts where the office of surveyor general has been discontinued, the following is communicated," etc. The instructions which followed authorized the survey of the beds of such lakes as the property of the United States, when the waters had "so permanently receded or dried up as to leave within the unsurveyed area dry land fit, in ordinary seasons, for agricultural purposes." The remainder of the instructions dealt with the mode of proceeding to have a survey made and title obtained by individuals. Here, again, as in the case of the rule of 1855, concerning the meandering of non-navigable lakes, the fact that it but in substance formulated the practice prevailing from the beginning, is shown by the report of the Commissioner of the General Land Office made in 1877 (Report, Land Office, p. 11), where, referring to the practice of the department as to surveying islands situated in navigable waters within a meander and the circular in respect thereto issued in 1868, and also referring to the circular of July 13, 1874, above referred to, it was said: "The regulations embraced in these circulars were not new *in their substance, but [501] were simply a formulation of the pre-existing practice of the office theretofore administered with reference to the class of lands to which they were applicable." It is then established that from the very beginning of the government, until at least the date of the circular just referred to, the practice was, after non-navigable bodies of water had been meandered, when the beds thereof became uncovered, to dispose of such beds as the property of the United States, separately from the former border lots. As the record does not disclose the number of instances in which this practice was observed during nearly one hundred years prior to Hardin v. Jordan, I may not state them, but, as no single instance to the contrary appears, it seems to me that the statement in Hardin v. Jordan, that the contrary rule had always prevailed, is left without any support whatever, and must have arisen The Land Department, on July 13, 1874 from confounding the uniform practice not (Copp's Public Land Laws, p. 765), issued to sell the channel of navigable rivers, which directions which were to govern the survey belonged to the states, with the uniform of the bed of non-navigable lakes and other practice to the contrary as to non-navigable like bodies of water which had been mean- waters, which belonged to the United dered at the time of the original survey, and States. But, the acts of Congress on the which had become suitable for survey and subject are so clear that they leave no room sale. As the circular of instructions related for substantial controversy, and they, in efonly to districts where the office of surveyor fect, amount to a legislative approval general had been abolished, and could not of the construction of the laws of the have been intended to create a rule in such United States affixed by the adminisdistricts different from that obtaining in'trative officers to those laws from the very foundation of the government. Thus, the premises. The suggestion that courts as on July 1, 1870 (16 Stat. at L. 187, a matter of convenience will determine by chap. 199), after the sale of border lots abut- the state law the extent of a grant made by[503] ting on the meander of a marsh and the Lit- the United States is without force, since tle Calumet river, Congress provided for the courts have no power upon their conception survey and sale of the lands within the me- of convenience to deprive the United States anders. So, also, after the patenting to the of its property by resorting to the laws of a state of Indiana of the fractional lots abut- state in order to devest the title of the ting on Beaver lake, Congress, by act of Jan- United States in and to property which it uary 11, 1873 (17 Stat. at L. 409, chap. owns, and which it has never voluntarily 32), granted the bed of the lake to the state. parted with if its own laws be applied. Again, by the act of February 19, 1874 (18 Moreover, the argument of convenience, Stat. at L. 16, chap. 30), the bed of a mean- when inherently considered, is without merdered lake, known as Tarkio lake, situated it, since it rests on the assumption that, for in Holt county, Missouri, was conveyed to the purpose of convenience, it will be held the county, with a reservation, however, that that what property passed by a grant of the the county should make title to such person United States is to be measured by a varias might have settled upon any portion of able standard, the divergent laws of the sevthe land once part of the bed of the lake, un-eral States, instead of the law of the United der the homestead and pre-emption laws. States operating generally throughout the Yet a further illustration, which, because of United States, thus creating uncertainty [502]its brevity and importance, is excerpted *in and confusion by causing it to come to pass full. Congress passed an act, approved on that a grant made by the United States in December 21, 1874 (18 Stat. at L. 293, chap. virtue of the authority conferred by the 5), which reads as follows: statutes of the United States will mean one thing in one state and a wholly different thing in another. "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That so much of the bed of the marsh or pond in sections fourteen, twenty-three, and twenty-six, in township sixteen north, of range twenty east of the fourth principal meridian in the county of Sheboygan, in the state of Wisconsin, as shall or may be reclaimed by draining the water from the same, shall be owned and held, so far as any rights or interests of the United States are concerned, by the owners of the lands abutting upon said marsh or pond, and draining the same to the center or thread thereof, and divided among the several owners adjoining and abutting said marsh or pond, according to the rules of law, upon payment by said adjoining owners into the treasury of the United States of $1.25 per acre for the amount of land that has been or may be so reclaimed." But, it is said, although it be conceded that the patentee, under the law of the United States, was confined to the land within the actual boundaries of the fractional lots conveyed, nevertheless if, as a matter of conveyancing, a grant by an individual would be construed under the state law as extending beyond the dry land to the center of the water, such construction should be applied to the patents of the United States. This, however, but asserts the same proposition which I have already fully considered, and, whilst seemingly accepting the true meaning of the law of the United States and the interpretation given to it from the beginning, proceeds to overthrow it. To argue that, because conveyances made by individuals are controlled by the law of the states, therefore conveyances made by the United States are likewise so controlled, involves, as I see it, not only a non sequitur, but, besides, amounts to denying, so far as the public domain is concerned, that there is a government of the United States having complete ownership and supreme power in As pointed out by this court in Irvine v. Marshall, 20 How. 558, 563, 15 L. ed. 994, 997, one of the very objects of the provision of the Constitution conferring ample power upon Congress with respect to the property of the United States was to prevent this very condition of things. In other words, the proposition is that, for the sake of assumed convenience, a rule of interpretation should be resorted to to bring about the very condition of inconvenience which it was the purpose by the constitutional provision in question to guard against. Conceding, however, arguendo, that grant by the United States should be construed as a matter of conveyancing by the local law prevailing in a particular state, it nevertheless seems to me clear that the conclusion which the court reaches is erroneous. As has been shown in the Portsmouth Bank Case, the supreme court of Indiana expressly decided that a conveyance of border lots by the state was to be governed, not by the rules of conveyancing applicable to private individuals, but that the power of the state officers was to be ascertained from the statutes of the state alone; consequently, it was decided that, where the state had conveyed the lots abutting *on Beaver lake by the ex-[504} act description contained in the patents of the United States, such conveyances gave no right to the bed of the lake, because power existed in the officers of the state only to sell lands which had been regularly surveyed and platted. In other words, the local deci sions in Indiana establish the exact distine tion between the rule of conveyancing applicable to individuals and those controlling the grant by a government, which was pointed out by this court in the passage from the opinion in Shively v. Bowlby, previously quoted. Surely, if it be the rule in Indiana that the construction of a grant made by the state of its public lands is to be controlled by the state statutes, it should not now because of a principle of law which it is imposheld that a grant by the United States of its sible for me to state, because my mind does lands situated in Indiana is not to be con- not perceive it. strued by the statutes of the United States, Pretermitting, however, this view, and but by the rules of conveyancing applicable considering the case as controlled by the to private grants. In other words, that, in rule of Hardin v. Jordan, it only remains to dealing with the lands of the United States, determine whether, under the principle of the government is to be subjected to the lo- stare decisis, my duty is to assent to its apcal law of Indiana, and yet at the same time plication in the case at hand. Undoubtedly, be deprived of the rights which are accorded since Hardin v. Jordan was decided, rights by that law to the state, regarded as a gov- of property may have accrued predicated on ernment. To now so hold, it seems to me, is the ruling made in that case; but it is also but to declare that it is within the province unquestionable that rights of property which of the local law to strip the United States of had vested prior to that ruling under the its governmental attributes and reduce it to acts of Congress, and the settled constructhe condition of a mere private individual. tion and practice of the government prevailThis difficulty cannot be avoided by suggesting for almost a century, would be devested ing that in this particular case the Indiana courts have decided that the transfer of the border lots carried the beds of the lakes, and hence it must be construed that such land passed by the local law. As has been previously demonstrated, the decision of the su-issued prior to the decision in Hardin v. preme court of Indiana in this case was in Jordan. Two classes of rights of property effect predicated on its previous rulings in then must be considered,-the one resting on Stoner v. Rice and the Tolleston Club Cases. the true rule existing from the foundation In those cases it was declared that the doc- of the government, and the other upon the trine previously announced in the Ports- mistaken theory of Hardin v. Jordan. I do mouth Bank Case was not overruled, but the not feel at liberty to indulge in the conjeccourt proceeded upon the theory that that ture that the rights which were brought into case was inapplicable, because it held in the existence during a century are less importsubsequent cases that there had been in those ant than those which may have arisen in the cases a survey of the land under water at comparatively short period since the decithe time the border lots were conveyed by sion in Hardin v. Jordan. Putting this the United States. This was based, not up- view aside, if only the rights of those who on any local law, but upon the law of the had actually received the patents of the United States as construed by the state United States for the beds of the lakes [505] court. That construction being overthrown which had once been meandered were conby the decision of this court in Gazzam v. cerned, it might be that I should consider it Phillips and the many other cases in this my duty to accept as controlling, under the court which have followed it, it results that rule of stare decisis, the decision in Hardin by the Federal law, upon which the court | v. Jordan, and thus deprive the plaintiffs in based its decision, the beds of the lakes did error, whose rights are here at issue, of their not pass. And that this result was under-property, and this upon the assumption that stood by the supreme court of Indiana is the legislative department of the governshown by the opinion on the rehearing in the ment would rectify the wrong which would Tolleston Club Case, where it was expressly be thus inflicted. My mind, however, candeclared that, if the theory of survey an- not escape the conviction that the conse nounced by the court was incorrect, it was quence of adhering to the doctrine of Harits opinion that the bed of the lake did not din v. Jordan cannot be limited merely to pass, and title thereto remained in the the rights of those who may have in the past United States. The decision now announced, actually acquired from the United States therefore, holds that the question whether title to land once forming the beds of meanthe beds of the lakes passed is to be deter-dered lakes. On the contrary, that doctrine mined by the local law as a matter of conveyancing. When it develops by the decision of the Indiana court that, under the local law, as a matter of conveyancing, the beds of the lakes did not pass, it is then in effect decided that the beds did pass, because it has been decided by the supreme court of Indiana that there had been a survey under the law of the United States, although the fact that there had been none conclusively results from a line of decisions of this court which are not now questioned. It comes then, as my mind sees it, to this: The beds of the lakes did not pass by the local law, and they did not pass by the Federal law correctly construed; but, although passing by neither the Federal nor the local law, they must yet be held to have passed be if that case were applied. Indeed, the case strips the United States of the title to the bed of every pond or lake which was meandered during the nearly a century which preceded the decision in Hardin v. Jordan, where the lots bordering on such meandered lakes had been disposed of by the United States. This shows the inadequacy of the suggestion that the United States may, by a change of the form of conveyancing, obviate the doctrine now maintained. Whatever be the change in the rules of conveyancing whenever the bed of a meandered lake hereafter becomes fit for sale, the question must recur and call for a reiteration of the ruling now made. Under these circumstances, the line upon which I should act seems to me to have already been plainly pointed out by the court in Gazzam v. Phillips, 20 How. 372, 15 L. ed. 958. There the court, as I have said, having been called upon to consider the correctness of the rule announced by it twelve [507] years before in Brown v. Clements, 3 How. 650, 11 L. ed. 767, and having concluded that that case had been wrongly decided, was required to determine whether it was its duty under the rule of stare decisis to perpetuate an erroneous principle or apply a correct one. In deciding to follow the latter course, the reason which controlled to the conclusion is so directly applicable to the subject-matter of this case, and was so frankly and ably stated, that I excerpt a passage from the opinion, as follows (p. 378, L. ed. p. 961): "It is possible that some rights may be disturbed by refusing to follow the opinion expressed in that case; but we are satisfied that far less inconvenience will result from this dissent, than by adhering to a principle which we think unsound, and which, in its practical operation, will unsettle the surveys and subdivisions of fractional sections of the public land running through a period of some twenty-eight years. Anyone familiar with the vast tracts of the public domain surveyed and sold, and tracts surveyed and yet unsold, within the period mentioned, can form some idea of the extent of the disturbance and confusion that must inevitably flow from an adherence to any such principle. We cannot, therefore, adopt that decision or apply its principles in rendering the judgment of the court in this case." Concluding that the patents of the United States to the state of Indiana for the fractional lots abutting upon Wolf lake and Lake George did not convey title to land under the water, and that the patents subsequently issued by the United States, based upon the Wolcott survey of 1875, purporting to pass the title to land once a part of the beds of the lakes were valid, I dissent. I am authorized to say that Mr. Justice [508]*GERTRUDE H. HARDIN and the Cook County Canal & Dock Company, Plffs. in Err., 1. CHARLES B. SHEDD. (See S. C. Reporter's ed. 508-524.) Public lands-grant of land bordering on ing to the United States takes title to the adjoining submerged land is determined by the law of the state where the land lies. [No. 56.] Submitted January 13, 1902. Ordered for reargument December 22, 1902. Reargued January 12, 13, 1903. Decided May 18, 1903. IN ERROR to the Supreme Court of the State of Illinois to review a decree which affirmed a decree of the Circuit Court of Cook County in favor of petitioner in a proceeding under the burnt records act of that state. Affirmed. See same case below, 177 Ill. 123, 52 N. E. 380. The facts are stated in the opinion. Mr. Thomas Dent submitted the cause for plaintiffs in error: Land belonging to the United States cannot be disposed of, except by the authority of Congress. Gibson v. Chouteau, 13 Wall. 92, 20 L. ed. 534; Irvine v. Marshall, 20 How. 558, 15 L. ed. 994. Whenever the question in any court, state or Federal, is whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States. Wilcox v. Jackson ex dem. M'Connel, 13 Pet. 498, 516, 10 L.. ed. 264, 273; Bagnell v. Broderick, 13 Pet. 436, 10 L. ed. 235; Paige v. Peters, 70 Wis. 178, 35 N. W. 328; Irvine v. Marshall, 20 How. 564, 15 L. ed. 997; Gibson v. Chouteau, 13 Wall. 92, 20 L. ed. 534; Seymour v. Sanders, 3 Dill. 440, Fed, Cas. No. 12,690; Gilmore v. Sapp, 100 Ill. 297. The supreme court of Illinois has been in accord with this court in treating the meander of a body of water in the government surveys as having been run, not as a limitation upon boundaries, but for showing the water as a boundary, and ascertaining quantities approximately. St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 19 L. ed. 74; Middleton v. Pritchard, 4 Ill. 510, 38 Am. Dec. 112; Houck v. Yates, 82 Ill. 179; Fuller v. Dauphin, 124 Ill. 542, 16 N. E. 917. The courts of the United States will construe the grants of the general government, without reference to the rules of construction adopted by the states for their grants. Packer v. Bird, 137 U. S. 661, 34 L. ed. 819, 11 Sup. Ct. Rep. 210. The presumption is in ordinary cases that a deed for a tract having water frontage Whether the patentee of the United States to NOTE. As to title to land under water-see As to state decisions and laws as rules of decision in Federal courts-see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553; Griffin v. Overman Wheel Co. 9 C. C. A. 548; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson er dem. St. John v. Chew, 6 L. ed. U. S. 583; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Clark v. Graham, 5 L. ed. U. S. 334, and Forepaugh v. Delaware, L. & W. R. Co. (Pa.) 5 L. R. A. 508. |