
    Uri L. Lamprey et al. vs. Warren H. Mead et al.
    
    Argued by appellant, submitted on brief by respondents, July 14, 1893.
    Affirmed July 24, 1893.
    Rights of Patentee of Riparian Lands.
    Where a patent issues for a fractional lot appearing by the plat of the United States survey to be bounded on one side by a meandered lake, the patent is not void so far as it purports to convey the land under the water, though it was error in the survey to treat the tract covered by the water as lake to be meandered, instead of land to be surveyed. Conceding the patent to that extent to be voidable, it can be avoided only by the United States, in a proceeding to which the patentee is a party.
    Appeal by the defendant, the St. Paul, Minneapolis & Manitoba Railway Company from an order of the District Court of Ramsey County, Rascal R. Brill, J., made March 27, 1893, denying its motion for a new trial.
    The plaintiffs, Uri L. Lamprey and wife, filed their complaint April 4, 1892, against Warren H. Mead, Philip Reilly and Oscar M. Metcalf for partition, stating that Lamprey owned seven-tenths and each of the others one-tenth of an irregular unoccupied piece of land containing about eighty acres, lying in the southeast comer of section five (5), T. 28, R. 22, in West St. Paul, worth $50,000. It is in the northwest corner of the part marked Lake on the accompanying map. The various railroad companies, which succeeded to the land grants under the Act of March 3, 1857, (11 U. S. Stat. ch. 99, p. 195,) were also made defendants as adverse claimants of this land, lying in an odd section. The St. Paul, Minneapolis & Manitoba Railway Company appeared and answered that-it had succeeded to the rights and land grant of the Minnesota & Pacific Railroad Company, acquired under the Act of the Territorial Legislature approved May 22, 1857, and claimed title to the land under this Congressional and Territorial legislation. It alleged that its map of definite location of its line of road in the vicinity was filed December 5, 1857, and it claimed this land in section five (5) as within the grant, and not then otherwise appropriated. The other railway companies disclaimed any interest. In 1853 the property was a natural lake, and tbe title in tbe Federal Government. Tbe surrounding shore was surveyed and tbe lake meandered, in September of that year, under tbe direction and supervision of tbe Secretary of tbe Interior. Tbe shore lands were sold in 1856, and patented to tbe remote grantors of tbe plaintiff and bis cotenants. Tbe patents referred to tbe plat of tbe survey on file in the General Land Office, and contained no reservation or limitation whatever. In 1860 tbe lake bad so far receded that tbe Federal Government surveyed tbe land between tbe then shore and tbe old meander line, and on March 20, 1873, sold and patented this strip to Charles D. Gilmore, who subsequently conveyed it to plaintiffs and their coten-ants. Tbe lake has slowly receded and diminished in size, from year to year, until its bed is now nearly all dry land.
    At tbe trial tbe Railroad Company offered to prove tbe rules and regulations of tbe land department of tbe Federal Government under which tbe surveys of this land, and supposed lake, were made, and also tbe field notes of those surveys, and tbe surveyor’s reports to tbe General Land Office and tbe approval thereof by tbe Secretary of tbe Interior. It also offered to prove that tbe patentees when they purchased in 1856 resided near tbe lake and knew its condition, extent and tbe cause of its formation. That it was shallow, easily drained and likely to dry up. That tbe meander line, as shown on tbe map, was made in violation of the rules of tbe Department. That in those early times, at very high water in tbe Mississippi River, it would overflow its banks into this depression, where tbe water would remain until it leached away or dried up, leaving tbe bottom mere marsh and swail, fit for meadow and pasturage and containing sedge-grass, wild rice, wire grass, rushes and flower de lis. That tbe bottom of this supposed lake was three feet higher than tbe surface of tbe water in tbe Mississippi River at its ordinary stage, and that tbe land between tbe river and tbe lake was from four to eight feet higher than tbe bed of the supposed lake. That it could then, and can still, be readily drained into tbe river by a ditch, from four to eight feet deep and eighty rods long. It also offered to prove that when tbe survey was made in 1853 tbe river was high, overflowing its banks; that tbe water in tbe lake bad never been more than about three feet deep in tbe deepest parts when the river was not actually overflowing into it.
    
      This was all objected to and excluded, and tbe Railroad Company excepted. It claimed that tbe patentees acquired no rights inside tbe meander line, and that so much of tbe so-called lake as lay within section five (5) and within tbe meander line was not sold or apportioned when tbe map of tbe definite line of its road was filed, December 5, 1857, and that under tbe legislation above mentioned tbe title to it vested in tbe St. Paul & Pacific Railroad Company, and passed to defendant as tbe grantee and successor of that corporation. Tbe claim of tbe state to tbe whole of this lake was,adjudged invalid in Lamprey v. State, 52 Minn. 181.
    
      John M. Gilman and M. D. Grover, for appellant.
    Tbe title or interest of plaintiffs in tbe land in suit rests upon tbe patents and survey as shown on tbe plat referred to. It was competent for defendant to show that such land was not included in tbe description contained in tbe patent. That tbe boundary was not a lake, but tbe meander line. That plaintiffs acquired no riparian rights to tbe land in suit, for tbe reason that such land did not, and does not, abut upon any lake or body of water. Tbe patent and plat are not conclusive as defining tbe boundary of tbe land conveyed. Defendant bad a right to controvert and defeat the-prima facie case made by plaintiffs upon the patent and survey, by showing that tbe meander line was not tbe boundary of tbe lake designated on tbe plat, or of any lake. That there was no lake as shown upon tbe plat, and that there was fraud or mistake in tbe survey. Land cannot pass as appurtenant to land. Jones v. Johnson, 18 How. 150; Bates v. Illinois Cent. R. Co., 1 Black, 204; Illinois Cent. R. Co. v. Illinois, 146 U. S. 387.
    A meander line will be held to be coincident with tbe boundaries of a lake, and tbe lake will be held to be tbe boundary of land conveyed abutting upon it, when the meander line is substantially coincident with the actual border of the lake. Hardin v. Jordan, 140 U. S. 371; Mitchell v. Smale, 140 U. S. 406.
    If then it may be shown that a meander line appearing upon a plat was located as coincident with tbe borders of a lake or river by mistake, or fraud, tbe question arises, do not tbe offers of tbe proof in this case show such mistake or fraud, on tbe part of tbe surveyor in making the plat and survey in question ? Granger v. Swart, 1 Wool worth, C. C. 88; Bissell v. Fletcher, 19 Neb. 725; Lammers v. Nissen, 4 Neb. 245; Harrison v. Stipes, 34 Neb. 431; Whitney v. Detroit L. Go,, 78 Wis. 240; Glenn v. Jeffrey, 75 Iowa, 20; Schwr-meisr v. St. Paul é Pac. B. Co., 10 Minn. 82, (Gil. 59.)
    The plat shows only a lake. The field notes show a line running a given distance to and from certain definite points. There was no lake in fact. The meander line was run at a time of high water and a temporary overflow of the Mississippi Biver. It ran along dry land never covered by water, except in case of high water and overflow of the Mississippi Biver. The meander line did not correspond with the segregation line between dry, and swamp or overflowed land, but was located on dry land at a considerable distance outside of the segregation line between dry, and swamp or overflowed land. No part of any lake was ever upon, or even touched the lot described in the patent. In the absence of a lake, the call of the patent can only be answered by seeking another boundary line. A boundary line was fixed and established by the survey, that is in the courses and distances of the meander line, which are stated in the field notes, and can now be indicated on the ground.
    
      Stryker á Moore, also for appellant.
    There is involved in the case at bar, no lake and-no true meander line, and the land claimed by plaintiffs is not described in their deeds nor in the patents under which they hold. The locus in quo lies within lines run by surveyors to represent the meanderings of a lake, which in fact has never existed. Defendant offered to prove this at the trial, but its evidence was excluded. This land is claimed by plaintiffs because they are owners of other lands purchased from the government around this imaginary lake, according to the official plat of the survey of said land returned to the General Land Office by the Surveyor General. On examining the government plat, we find that each of these several lots is represented as bounded by a lake. If such a lake ever existed, it must be conceded that plaintiffs’ title is established, under the rulings of this court in Lamprey v. State, 52 Minn. 181, and of the Supreme Court of the United States in Hardin v. Jordan, 140 TT. S. 371.
    
      If a lake did not exist, then only in case of an estoppel, by reason of the making of the map, and reference thereto in the patent, are the government and its grantees, the railroad companies, precluded from defeating plaintiffs’ claim. But estoppel does not exist if defendant is able to substantiate its offer to prove actual knowledge on the part of the plaintiffs and their grantors, that the lake represented on the map never existed. And, considering plaintiffs’ case alone, it is apparent from the inception of their title that the origi-. nal patentees must have had knowledge of the non-existence of the lake (if there was none in fact), for these patentees were pre-empt-ors, and must, under the law, have been in actual occupation of the land, and have resided upon it, before the patent issued. The basis of an estoppel is then entirely wanting in this case. Plaintiffs and their grantors have always acted with actual knowledge that there was no lake. They have never been misled in that regard by anyone. They have always known that the official plat was erroneous. Nell v. Dayton, 43 Minn. 242; Schurmeier v. St. Paul & Pac. R. Co., 10 Minn. 82, (Gil. 59;) Drew v. Swift, 46 N. Y. 204; Herrick v. Churchill, 35 Minn. 318; MyricJc v. Conrsalle, 32 Minn. 153.
    
      John A. Larimore, for respondents.
    The St. Paul, Minneapolis & Manitoba Railway Company contends that it owns all of section five which had not been disposed of by the government prior to December 5, 1857. It admits that the government patents conveyed all not within the meanders of the lake, but denies that the patents conveyed any of the land inside of the meander line, because the waters which were meandered never should have been meandered at all. That, in making the survey, the lake was meandered through mistake or fraud. As the patents were prior to the railroad grant the lands were not conveyed by that grant, but on the contrary, were by its terms excepted from the grant. As none of the lands in the suit were conveyed by the railroad grant, it follows that the defendant has no right in the lands, and that having no right it cannot question plaintiffs’ patent title. That the patents of the land bordering on this non-navigable, meandered lake, embraced and conveyed the bed of the lake is a question no longer open to litigation in this state. It is forever set-tied in Lamprey v. State, 52 Minn. 381, which was a suit involving this same lake. Lands subject to. a claim, legal on its face, at the time the railroad grant takes effect are excepted from the grant. Even if the claim is subsequently abandoned or canceled, or is illegal, the grant will not cover the land. If the grant, when it takes effect, does not embrace the land, then the land can never be brought within the grant, no matter what the facts are. Copp’s Land Owner, vol. 1, p. 36; vol. 3, pp. 85,179; vol. 4, pp. 123,163; vol. .5, p. 180; vol. 8, p. 161; vol. 9, pp. 201,236;- vol. 10, pp. 13, 20; vol. 11, pp. 9, 117, 150,151,171,122, 252, 264; vol. 12, pp. 9, 39, 55, 138, 161, 208, 277; vol. 13, pp. 21, 124, 149, 136, 250; vol. 14, pp. 30, 55, 75, 156, 167, 204; vol. 15, pp. 90, 103, 152, 187; vol. 17, pp. 67, 142; vol. 18, pp. 19, 214.
    The foregoing are some of the many decisions of the Land Department shoAving that its uniform rule for many years has been, that land situated as the land involved in this case was, at the time of the railroad land grant, is excepted from the grant and cannot be brought within its provisions. United States v. Burlington é M. R. R. Go., 98 U. S. 334; Hastings & D. R. Co. v. Whitney, 34 Minn. 538; St. Paul á S. C. R. Co. v. Ward, 47 Minn. 40; Winona é St. P. L. Co. v. Ebileisor, 52 Minn. 312; Hastings é D. R. Go. v. Whitney, 132 U. S. 357; Sioux City, etc., L. Co. v. Griffey, 143 U. S. 32; Barclon v. Northern Pac. R. Go., 145 U. S. 535.
    If there was a mistake or error in this, (the issuing of the patent,) no one but the United States, or some one having an interest in the land, could complain. Dawson v. Mayall, 45 Minn. 408. The railroad company concedes that the plaintiff made out a prima facie case. Then it admits and concedes that the patent title was regular and legal on its face; then it concedes and admits that at the time the railroad grant was enacted and took effect, there was a claim^ valid on its face, against the land. It admits and concedes the plat showed one boundary of the land to be the lake, and the patent was given pursuant to the plat, making it a part thereof, then it admits and concedes that the lake was the boundary on that side of the land covered by the patent. And the lake being used as a boundary, its center line was the boundary line; and therefore it admits and concedes that the patent on its face covered the land — conveyed the lake bed. When the defendant made its offer of proof in the court below, plaintiff objected to the defendant’s assailing the patent title, upon the ground that as the patents were prior to the railroad grant, the lands covered thereby were excepted from it; and the defendant haying no interest in the land, any testimony in that direction on its part was incompetent and immaterial. The objection was sustained; not upon the ground that the defendant might or might not be able, to prove its offer, but upon the ground that as it had no interest, it had no right to go into the question.
    Counsel cite several cases from Nebraska to the effect that the meander line is the boundary line, and not the water. They are not authority in this court. It has always been the law in Nebraska that the meander line was the boundary line, whether it coincided with the water or not. It is the only state in the Union which holds that doctrine.
    The validity of a patent of the government, cannot be assailed collaterally because false and perjured testimony may have been used to secure it, any more than a judgment of a court of justice can be assailed collaterally on like ground. Until set aside, it must, of course, stand against a collateral attack with the efficacy attending judgments. It cannot be vacated or limited in proceedings where it comes collaterally in question. This can be accomplished only by regular judicial proceedings, taken in the name of the government, for that special purpose. Steel v. Smelting Go., 106 U. 8. 447.
   Gilfillan, C. J.

The action is for partition. The complaint claims that the plaintiffs and the defendants Mead, Reilly, and Metcalf are the owners, as tenants in common, of the land, and the other defendants are joined to determine their claim of title. The other defendants who answer claim under the railroad land grant to the Territory in 1857. The lands in township No. 28 N., of range No. 22 W. of the fourth P. M., were surveyed in 1858, the subdivision lines being run in September of that year. The map or plat of the survey was filed in the office of the surveyor general, and was by him examined and approved February 27, 1854. In May, 1855, patents issued for lot 9, section 4, and lot 9, section 5, and in March, 1855, a patent issued for lots 4 and 8, section 5. The plaintiffs and defendants Mead, Reilly, and Metcalf claim under these patents.

On the map or plat was a tract marked “Lake,” on which the lots so patented abutted. The following rough diagram shows approximately the position of the lots with reference to the “lake.”

All the lands surrounding the lake were surveyed, and appear platted as fractional lots. The controversy is over the bed of what is designated “Lake” in front of the patented lots, the plaintiffs claiming that, according to the law as laid down in Hardin v. Jordan, 140 U. S. 371, (11 Sup. Ct. Rep. 808, 838;) Mitchell v. Smale, 140 U. S. 406, (11 Sup. Ct. Rep. 819, 840;) and Lamprey v. State, 52 Minn. 181, (53 N. W. Rep. 1139,) the title to the bed of the lake in front of those lots passed by the patents, the defendants claiming under the land grant that by reason of the facts which they offered to prove it remained in the United States, and passed by the land grant to which those defendants have succeeded.

On the trial the plaintiffs introduced the plat and patents and deeds passing the titles derived under the patents to them and the defendants Mead, Reilly, and Metcalf, and rested. The other defendants made certain offers of evidence, which, on plaintiffs objecting, were overruled. These offers and the rulings thereon present the questions in the case. The offers are too long to be quoted in this opinion, but they included a survey of the land covered by the 'lake,” made and approved in 1861, and facts which it is claimed would establish, not that when the original survey was made the water did not cover the tract marked “lake,” but that it ought to have been surveyed as land, and not to have been meandered as a lake. Conceding that the water was there at the time of the survey, and presented the question whether for the purpose of the survey it ought to be regarded as a lake or as land, the offers are, in effect, to impeach the survey by showing that it was error or mistake to regard it as a lake. The proposition suggests a question of great practical importance. It is a serious matter, in this state at least, where, as is of common knowledge, what was undoubted lake ten years ago might five years later be only marsh, and to-day dry land, if, after the lapse of forty years, a United States survey representing a tract of water as meandered lake, and according to which the government has conveyed the abutting land, can be impeached, and the rights of the patentees unseated. But the question is not presented in this case for solution. Of course, so long as the government had not conveyed any of the lands abutting on the lake, it could correct the survey, survey the tract under the water as land, and convey it as such. And it may be conceded (though it is by no means clear) that the government is not bound by an erroneous or mistaken survey, even after it has conveyed the land according to it; but it cannot correct such erroneous survey so as to defeat or injuriously affect the rights of its patentees by any ex parte acts, or in any way except by a proceeding to which such patentees are parties, and in which they have an opportunity to be heard. It has no more right to limit or diminish the effect of its past grants by its own acts than has a private grantor. Lindsay v. Hawes, 2 Black, 554, furnishes an instance in which, rights having been acquired under an erroneous survey, it was held that a subsequent correct survey did not defeat the rights so acquired. It follows that the survey of 1861 does not affect the case.

The patents conveyed- the fractional lots according to the survey as it was represented by the plat. The latter was therefore part of the patents as much as though it were fully set forth in them. On their face they transferred to the patentees the right to the land under the water, not as defendants seem to argue, if appurtenant and as appurtenant to the shore land, but they took the fee, (a fee cannot be appurtenant,) because, when land is bounded in the conveyance by a nonnavigable lake or river, it is presumed the parties intend the center, and not the shore, line to be the boundary. They may limit the grant to the shore line if that intention be sufficiently expressed. The patents, even though it could be proved that the survey was a mistake, and that the determination of the government surveyors and officials that the water on the land when the survey was made constituted a lake to be meandered was erroneous, were not void so far as they purported to convey the land under water. At worst they were only, to that extent, voidable at the instance of the government, in proper proceedings for reformation of the patents. White v. Burnley, 20 How. 235; Spencer v. Lopsley, Id. 264. The ease is not one where a boundary given is an impossible one; where the monument given as marking it does not exist, or cannot be found. In such a case the boundary or monument must be disregarded, and the extent of the grant ascertained by other means, if the conveying instrument furnish them. There might be a case where the land is in terms bounded by a lake or river, and no lake or river is in fact to be found where the granting instrument indicates it to be. There might, in such a case, be a question how far the court will go to find such boundary before resorting to other means to define and locate the grant. Such a case was presented in Whitney v. Detroit Lumber Co., 78 Wis. 240, (47 N. W. Rep. 425.) In that case a fractional lot was wholly in a quarter of a quarter section, if full, and appeared by the plat of the survey to be bounded by a lake partly on that forty-acre tract. Tlie decision was, in' effect, that the court would not go, to find the lake as a boundary and locate the land, beyond the limits of the governmental subdivision of which the lot purported to be a fraction. Such- is not this case. In this case the boundary given was where the survey-indicated, the only claim being that it was mistake or error in the-survey to treat the water as lake. The patents being at worst only in part voidable, they passed the land, and, if the government choose to acquiesce in and abide by them, no one else can complain. If a patent issue to A., when it ought to have issued to B.,. or if a patent issued to A. prejudice the existing rights of B., the latter may have his remedy against A.; but one who has no interest which is affected by the patent cannot question it. Minnesota Land & I. Co. v. Davis, 40 Minn. 455, (42 N. W. Rep. 299.) The defendants do not even stand in the position of one acquiring a subsequent title or claim of title from the United States. The grant of 1857 attached to no land which, when the lines of railroad were definitely located, had been otherwise appropriated by the United States. The decisions are uniform that land, the claim to which, though ill founded,, was sub judice,—that is, awaiting determination,—was excepted from the operation of the grant, because otherwise appropriated within the meaning of the act. An outstanding patent, though, voidable, is an appropriation, within the reason of that rule.

(Opinion published 65 N. W. Rep. 1132.)

Order affirmed.  