
    James v. Howell.
    1. Ordinarily tlie meander-lines run in surveying fractional portions of the public lands bordering upon navigable waters, are run, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, or lake, and as the means of ascertaining the quantity of land in the fraction which is to be paid for by the purchaser.
    2. But when the government survey, field notes and plat show that a meander-line was run as the border, or boundary, between fractional sections and a marsh, and that the solid ground between the marsh and a lake was surveyed, meandered and platted as an island, with its acreage separately computed and marked by township and not by section, the first named meander-line is the boundary of the marsh. The fractional sections do not include any part of the ground surveyed, meandered and platted as an island.
    Ebbob. Reserved in the District Court of Lucas County.
    
      Section 2 of the act of May 18, 1796 (Brightley’s Dig., U. S. Stats., 498), provided that the public lands northwest of the river Ohio “ shall be divided by north and south lines, run according to the true meridian, and by others crossing them at right angles, so as to form townships of six miles square, unless where the line of the late Indian purchase, or tracts of land heretofore surveyed or patented, or the course of navigable rivers may render it impracticable ; and then this rule shall be departed from no further than such particular circumstances may require. One half of the said townships, taking them alternately, shall be subdivided into sections, containing, as nearly as may be, six hundred and forty acres each, by running through the same, each way, parallel lines at- the end of every two miles, and by marking a corner on each of said lines at the end of every mile, * * * . The fractional parts of townships shall be divided into sections in manner aforesaid, and the fractions of sections shall be annexed to and sold with the adjacent entire sections. * * * . These field books shall be returned to the surveyor-general, who shall therefrom cause a description of the whole lands surveyed to be made out * * ® ; he shall also cause a fair plat to be made of the townships, and fractional parts of townships, contained in the said lands, describing the sub-divisions thereof, and marking the corners. This plat shall be recorded in books to be kept for that purpose; a copy thereof shall be kept open at the surveyor-general’s office for public information, and other copies sent to the places of the sale, and to the Secretary of the Treasury.”
    Section 2 of the act of February 11, 1805 (Brightley’s Dig., U. S. Stats., 466), provides that “the boundary lines, actually run and marked, in the surveys returned by the surveyor-general * * * shall be established as the proper boundary lines of the sections, or sub-divisions, 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 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, as the case maybe, to the water course, Indian boundary line, or other external boundary of such fractional township.”
    During the years 1834 and 1835, Ambrose Rice, a deputy surveyor, pursuant to a contract, dated August 31, 1833, with Micajah T. Williams, then the surveyor-general of the United States, for Ohio, Indiana and the territory of Michigan, surveyed and sub-divided into sections fractional townships nine (9) south in range nine (9) east, and nine (9) and ten (10) south in range ten (10) east, from the Michigan meridian, and duly certified his field notes to the then surveyor-general, Robert T. Lytle. Lytle, pursuant to section 2 of the act of May 18, 1796, made descriptions of the lands surveyed and a plat of said townships, showing the sub-divisions and marks of the corners. This plat showed a line beginning on the west line of section 19, township 9, south of range 9 east (on the south shore of Maumee ba}7), and thence, running easterly and southerly, winding, as if following a shore, until it crossed the south line of section eleven (11) in township 10, south of range 10 east. Nearly opposite the point where a north and south line through the center of section 22, township 9, range 10, crossed this shore line, and about one mile and a half from it, began an island called Cedar Island. This ran at first northerly for more than half a mile, and then southeasterly to a point opposite the “ meander ” along the north side of section 25, in said township. A short distance southeast of this point another island began, and extended southeasterly beyond the north line of section 5, Township 9, range 9, produced easterly. There was a narrow inlet. A third island began on the east side of this inlet, and extended southeasterly, almost to what would be the east line of section eleven (11), township 10, south of range 10, east. Between these islands and the winding line, first described as a shore line, was a space designated “ impassable marsh and water.” No surveyed lines crossed the islands except the township lines. The northwestern island was named Cedar, and was the largest. The one next east of it was marked as “ Sandy Island.” The plat showed that 7.52-acres of it were in township 9, range 9; 28.49 acres in township 9, range 10; and 1.18 acres in township 10, range 10. The southeastern island was marked as “Crane Island,” containing 18.38 acres, all in township 10, range 10. From the northwest end of Sandy to the southeast end of Crane, was about seven miles. The field notes on the plat showed that the circumference of each island was surveyed, or “ meandered.” So also was the southerly edge of the “impassable marsh and water.” The same field notes showed that the fractional sections south of said marsh and water had their marked corners at the southerly edge of the marsh. Their computed areas included no part of either marsh, water, or islands. While no surveyed section lines crossed any island, dotted extensions of those lines showed that the islands began in section 24, township 9, range 9 (no part of this section was ever surveyed as such; it was all water, marsh and island), and crossed sections 19, 30, 29, 32 and 33 in township 9, range 10; (sections 19, 29 and 33 were all lake, marsh and island), and sections 4, 3, 2 and 11, township 10, range 10. Sections 3 and 2 were all lake, island and marsh. 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.
    On July 10, 1844, a patent issued Jo Margaret Bailey, reading thus:
    No. 17,698. The United States oe America.
    
      To all to whom these Presents shall come— Greeting:
    
    Whereas, Margaret Bailey, of Champaign county, Ohio, has deposited in. the General Land Office of the United States a certificate of the register of the Land Office at Bucyrus, whereby it appears that full payment has been made by the said Margaret Bailey according to the provisions of the act of Congress of the 24th of April, 1820, entitled “An act making further provision for the sale of the public lands ” for fractional section eleven, in township ten, south of the Michigan base line of range ten, in the district of land subject to sale at Bucyrus, Ohio, containing twenty acres and forty-five hundredths of an acre, according to the official plat of the survey of said lands returned to the General Land Office by the surveyor-general, which said tract of land has been purchased by the said Margaret Bailey.
    Now, know ye that the United States of America, in consideration of the premises and in conformity with the several acts of Congress, in such case made and provided, have given and granted, and by these presents do give and grant, unto the said Margaret Bailey, and to her heirs, the said tract above described, to have and to hold the same, together with all the rights, privileges, immunities and appurtenances, of whatsoever nature thereunto belonging, unto the said Margaret Bailey, and to her heirs and assigns forever.
    In witness whereof, I, John Tyler, President of the United States of America, have caused these letters to be made patent, and the seal of the General Land Office to be hereunto affixed.
    Given under my hand at the City of Washington the tenth day of July, in the year of our Lord one thousand eight hundred and forty-four, and of the Independence of the United State's the sixty-ninth.
    By the President, John Tyler,
    [seal.] By Wm. Tyler.
    N. M. Whitney, Recorder of the General Land Office. Signed by Recorder, 10th December, 1844.
    Ten other similar patents, all dated July 10, 1844, conVeyed to her fractional section 22, township 9, range 9, 142.15 acres; fractional section 25, township 9, .range 9, 255.58 acres; fractional section 26, township 9, range 9, 443.94 acres; fractional section 27, township 9, range 9, 588.58 acres; fractional section 30, township 9, range 10, 34.86 acres; fractional section 31, township 9, range 10, •33.72 acres; fractional section 4, township 10, range 10, 56.30 acres; fractional section 9, township 10, range 10, 585.09 acres; fractional section 10, township 10, range 10, 494.20 acres ; and fractional section 11, township 10, range 10, 20.44 acres.
    If the lines of fractional sections 30, 4 and. 11 were extended so as to embrace one mile square each, section 30 would include about one mile and one eighth of the western half of Sandy Island; section 4 would include about one eighth of a mile at the east end of Sandy Island and about one sixteenth of a mile off the west end of Crane Island, and section 11 would include something more than half a mile off the east end of Crane Island. Although the government plat showed no part of Sandy Island within the lines of section 25, if extended, a recent survey tended to prove that about one fourth of a mile,' or less, of that island is actually within the extended lines of that fractional section. John H. James had succeeded to all of Margaret Bailey’s rights under said patents, and he claimed all of said parts of said islands.
    All the rights and title conveyed by the United States to Margaret Bailey by the said ten patents passed by mesne conveyances, and are now held by John H. James.
    On October 10, 1876, a patent issued to Arthur Dudley Howell, reading thus :
    Certificate No. 20,126.
    The United States of America. .
    
      To all to whom these Presents shall come — Gtreeting:
    Whereas, Arthur Dudley Howell, of Lucas county, Ohio, has deposited in the General Land Office of the United States' a cértificate of the register of the land office at Chilicothe, Ohio, whereby it appears that full payment has been made by said Arthur Dudley Howell, according to the act of Congress of the 24th of April, 1820, entitled “ An act making farther provisions for the sale of the public lands,” for Sandy Island and Crane Island, on the shore of Lake Erie, in section 24 in township 9 south of range 9 east, and in sections 19, 29, 30, 32 and 33 in township 9 south of range 10 east, and in sections 2, 3, 4 and 11 in township 10 south of range 10, East Michigan meridian, in the district of lands subject to sale at Chilicothe, Ohio, containing fifty-five and fifty-seven hundredths of an acre, according to the official plat of the surveyor of the said lands, returned to the surveyor-general, which said tracts have been purchased by the said Arthur Dudley Howell. Now, know ye that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress in such cases made and provided, have given and granted, and by these presents do give and grant unto the said Arthur Dudley Howell, and to his heirs, the said tract above descz-ibed, to have and to hold the same, together with all the rights, pi'ivileges, iznznunities and appurtenances of whatever nature thereto belonging unto the said Arthur Dudley Howell, his heirs and assigns forever.
    In testimony of which, I, Ulysses S. Grant, President of the United States of America, have caused these letters to be made patezit, and the seal of the General Lazzd Office to be hereto affixed.
    Given under my hand, at the City of Washington, the tenth day of October, in the year one thousand eight hundred azid seventy-six, and of the independence of the United States the one hundred and first.
    By the President, U. S. Grant. By D. D. CONE, Sec’y.
    [seal.] S. W. Clark, Recorder of Gezi. Land Office.
    In Lucas common pleas, James sued Howell and Farley, to recover possession of part of these islands held by them, and Howell sued Jaznes and his tenants, for possession of other parts held by them. These actions were, by consent, tried upon the same evidence, a jury being waived. Judgments for Howell were rendered in each case. James filed petitions in error in the district court. By its order they were reserved for decision in the supreme court. The same bill of exceptions is in each case. It contains evidence tending to show — besides the facts hereinbefore stated — the' following: The so-called “ impassable marsh and water ” was composed of water mostly hidden by flags, wild rice, and similar vegetation. Through it no navigable water channel existed; even at low stages of the lake the water in the marsh was at lowest places six inches in depth. At a few points it could be crossed by wading. Ponds of water, separated by intervals of said vegetation, extended throughout from northwest to southeast. At times there was high water, partly from the lake and partly from inland streams, which covered the whole marsh, and also parts of the island and main land. As years passed by parts of the marsh gradually filled into a semblance of land. None of it was cultivable. In storms the lake sometimes beat over the islands, and to some extent changed their form and position. A recent survey, made with modern instruments, located a portion of Sandy Island perhaps a quarter of a mile southwesterly from the position indicated by Rice’s survey. This would place a small part of that island in section 25, township 9, range 9, instead of in section 19, township 9, range 10. On the islands trees — cottonwoods, sycamores and willows — were interspersed from the west end of Cedar all the way to the east end of Crane.
    J. B. Marston, a witness called on behalf of James, testified thus:
    “ Q. What is the character of this land between these old meandered lines and the sand beach? A. Well, it is what we call a flag marsh. Q. Did you ever see the beach or shore in very high water? A. Not in extreme high water, no, sir. Q. How much does the lake here vary in height? A. Six feet. Q. What do you mean by that, between the water in a northeaster and a soutliwester? A. Yes, sir; in storms. Q. Now, is there another variation running, along for ten or twelve years, where the tendency is to rise and then to fall ? A. I believe there is such a tendency, but I have not examined it enough to be able to testify. Q. State what the character of the land is between that sand beach and the meandered line of section 11, as to being capable of cultivation. A. It is not capable of cultivation. Q. How is it about being filled with pond holes ? A. There are pond holes in it. Q. Is there any channel running up and down, parallel with the beach, or anything like it along the inside of. the beach ? A. There is no definite, well defined channel; there are patches of water and then places to walk on and then other patches of water. Q. Do the channels all run back to the woods? A. The creeks and channels all run from the woods out to and spread over the marsh. Q. Does this sand beach frequently stop up the channels ? A. I have known cases where those channels would break away through the sand and then stop up again. I think Crane Creek and Norman’s Straits are well defined openings.”
    Jonathan Wynn, called by Howell, testified thus:
    “Q. Well, what has been your occupation the greater part of your life ? A. I was a mill-wright originally and surveyed some, which occupation I followed off and on for thirty-five years, perhaps. Q. And from 1853 to 1856, down to the present time, how familiar have you been with these localities? A. Well, from 1856-7, up to about four or five years ago, I was on the beach about every fall; last three or four years I have only been there once perhaps; I mean at Crane Creek. I was most acquainted with the beach there, from Cedar Creek to Frenchman’s Creek and Norman Straits; I have not been beyond that. I first went there to mow grass and afterwards to hunt ducks. Q. Is this a continuous marsh from Maumee Bay, east ? A. Yes, sir; commencing a mile and a half or two miles from Jamestown and extending down to Frenchman’s Creek. Q. What is the character of the marsh? A. Well, when the water is very high you can go almost all over it with a boat; this fall the water was very low, and you can go almost all over it on foot. Q. How is it as to bogs or pond holes? A. You get into these pond holes and there is a bog; I mean in these rice bogs. Q. How extensive are the pond holes through the marsh ? A. Well, there is a very large number of them in the neighborhood of Frenchman’s Creek or Norman’s Straits; when you get below that there is a kind of a continuous string of marshes or ponds all the way down, so that when the water is high you can run from one pond to another with a boat. Q. Well, as I understand it, the height of the water in the marsh depends upon the lake and not upon any streams that run into the marsh ? A. Yes, sir; but in the spring it depends upon the water that comes from the woods a good deal, and stands sometimes higher in the marsh than in the lake, where the outlets are not sufficient to carry off, when the water is coming in very flush from the woods; at other times it is on a dead level with the lake, and is affected by the rise and fall of the water in the lake. Q. What can you say as to the location of this beach from Frenchman’s Creek to Crane Creek, now, compared with what it was when you first knew it? A. I can say very little, if any, difference in it. Right at Norman’s Straits it is changed a little ; but, excepting that point, it is the same as when I first saw it; I mean .the identical trees are there yet. Q. How do you think that the width of that island or sand bar compares now with what it was when you first saw it? A. It was decidedly wider this fall than it ever was when I first saw it; the accretion is on the lake shore side; I travelled it four or five miles this fall, and found it wider all the way; I went down about two miles below Ward’s Canal; didn’t go down quite to Crane Creek; by sand bar I mean these islands.”
    
      W. J. Gilmore and Henry T. Niles, for plaintiff in error;
    
      Charles Kent, John H. Boyle and Isaac P. Pugsley, for defendants in error.
   Granger, C. J.

The deputy surveyor, Rice, plainly limited the fractional quarter sections to the territory separated by the meander-line from the “ impassable water and marsh,” and surveyed “ Sandy ” and “ Crane ” as separate and distinct “islands.” The surveyor-general, Lytle, so treated fractional sections and islands, in making the statutory plat. The patents to Margaret Bailey conveyed to her each fractional section “ according to the official plat of the survey of said lands returned to the General Land Office by the surveyor-general.” James, at the trial below, put in evidence a plat, which the commissioner of the General Land Office, on April 16, 1851, certified to be a “ true and literal exemplification of the plats on file in this office.” This copy showed “ Cedar” and “ Crane ” as islands. On it no township or section line crossed either, except that the north and east lines of section 4, township 10 south, range 10 east, are shown. -This north line crossed a small island west of “ Crane,” while th‘e east line crossed the west end of “ Crane.” The lines of no other fractional section, lying south of Sandy and Crane islands, extend into the marsh at all. About one fourth of Sandy Island (the western part), is shown as an island. The remainder appears, some of it as a straight black line extending southeasterly from said western portion, and part as the vevy small island above referred to as crossed by the north line of said section 4. Because of this certified plat, James claims that, under power given by the act of July 4, 1836 (Land Laws, vol. 1, p. 552), the commissioner had disapproved so much of what had been done by the surveyor-general and his deputy as treated Sandy and Crane as islands, and therefore, they became and remained parts of the fractional sections.

Howell put in evidence certified copies of the surveyor-general’s plats of the three townships, and a certified copy of a diagram of the islands, made pursuant to the act of January 22, 1853. This was certified July 30, 1875. All these showed the islands as separately surveyed and computed. They were not included within any surveyed section lines, although on each township plat appeared dotted projections of the section lines across water, marsh and. islands. It is evident that the copy certified April 16th, 1851, is unreliable. It shows townships 9 and 10 south of range 10 east, as lying west of townships 9 and 10 south of range 9 east. If the commissioner had disapproved of the separate survey and platting of the islands, his approved plat would not show all of Cedar and Crane, and part of Sandjq as islands not included in sections. Instead of entirely omitting the dotted lines of Lytle, crossing water, islands and marsh, he would have converted them into regular section lines. An inspection of the certified copy, we think, establishes that this claim of James is unfounded.

The lines and corners, as actually surveyed and marked, bound the fractional sections by what is called the “ impassable water and marsh,” and not by the main body of the lake. The “ meander ” line along the southerly border of the marsh Was, in fact, intended to be the boundary line of the fractional sections. It is clear that the United States Land Office did not treat the islands as parcel of those fractional sections; it did treat them as islands surveyed, platted and to be sold as such. Margaret Bailey’s patents by express terms, grant “according” to the surveyor-general’s plats. The patents must be so construed as to give effect to their true intent and meaning, but the rule favoring grantee as against grantor does not apply to them, because the vendor was the public, the nation.

It is urged for James, that, under the act of 1796, it was unlawful to bound the fractional sections by the .marsh; that by force of that act, each of them extends across marsh and island to the main lake; that the statute authorized no boundaries for fractional sections except (1) straight north and south, or east and west lines; (2) “the line of the late Indian purchase; ” (3) “ tracts of land heretofore surveyed and patented;” or (4) “the course of navigable rivers';” and, therefore, wherever the lines of one of these fractional sections, if projected so as to include a square mile, do not meet either of these legal boundaries until they enter the main lake, all of that square mile between said lines and the lake are parcel o'f thé section, and pass to its patentee.

The act of 1796 is the instruction given by the government, as principal, to its agents in the land office. If construed literally and strictly, lake Erie itself could not be a legal boundary. Although in the mind of- a geographer it may be considered as part of the river St. Lawrence, it'is in legal terms, and in popular parlance, not a river, but a lake. But there is no dciubt that it is. a legal boundary under the true intent and meaning of the act of 1796. 'The waters of this lake are added to by the streams that drain the lands around it. The contributions of , such streams, mingled with other water of the lake,' fill the straits between Cedar, Sandy and Crane islands, and the space platted as “impassable water and marsh.” Even at low water in the lake, there is six inches of water in this marsh. Witnesses speak of a chain of ponds. These are merely spots in the marsh where, because of the depth, or for some other reason, vegetation has not been able to find support. The water is under the vegetation that covers the so called marsh, as well as in the so called ponds. The islands are in fact surrounded by water, although' vegetation of a certain sort grows thickly in much of that water. The meandered line along the southerly edge of the so called marsh, was in fact along a shore of the lake. In order to form a statutory boundary, the navigable river need not be actually navigable at every point. Lake Erie as a whole is navigable. For that reason every part of its shore, under the act, might be 'trsated by the surveyor as a legal boundary for fractional townships and sections. In so treating so much of the lake as lay behind these islands, Rice and Lytle did not exceed their authority. According to’the evidence put in by James, as well’ as by Howell, it appears that even at a low stage <jf the lake there is six inches depth of water in this inarsh, and a greater depth in the straits. Moreover, the act of 1805 expressly provides that “ the boundary lines actually run 'and marked in the surveys returned by the surveyor-general, shall be established as the proper boundary lines of the sections or subdivisions for tohich they were intended, and the length of such lines as returned shall be held and considered as the true length thereof.” Including the “ meander,” all the lines o£ Margaret Bailey’s fractional sections were actually run; marked and returned. Hence the provision touching lines not so run and marked, does not apply to her lands.

On behalf of James, her assignee, R. R. Co. v. Schurmeir, 7 Wall., 272, is cited in support of his claim, that the “meander” line, along the southern edge of the marsh, was run, not as a boundary for the fractional sections, but “ for the purpose of defining the sinuosities of the banks of the marsh, and as the means of ascertaining the quantity of land in the fraction which was to be paid for by the purchaser.” In that ease the court so held, but in stating the facts it said: “ 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 opposing claimant based his title on a second survey, made after the patent had been issued under the original survey. Clifford, J., in the opinion, after reciting the facts and quoting the statutes, said: “Express decision of the Supreme Court of the state was, that the river, in this case, and not the meander line, is the west boundary of the lot, and in that conclusion of the state court we entirely concur.” This decision was made at December term, A. d. 1868, Miller, J., concurring. Sitting in the circuit court for Wisconsin in April, 1865, the latter judge tried Granger v. Swart, Woolworth C. C. Rep., 89. He said to the jury: “ The patents .....under which the defendant claims, do not pass the title to the premises in question, unless, at the date of the entries on which they issued, the Rock river, where it is called a river, and lake Koshkonong, where it is called a lake, extended to and bordered upon the meandered line which constitutes the boundary of the lands described in the patents. In other words, if, between the meandered line, which by the government survey was made one of the boundaries of the land sold to Walker, and the 'bank of Rock river and shore of lake Koshkonong, there was at that time a body of swamp, or waste land, or flats, on which timber and grass grew, and horses and cattle could feed, and hay be cut, then the patents to Walker did not cover this land, but was confined to the actual limits of said meandered line.”

If the claim of counsel lor James be true, this charge was bad law; the surveyor could not, by the meander line, deprive the fractional section of its right to go as far as to the river or lake.

These two cases do not conflict. In each case it seems to us the same principle was applied. In the absence of plain indication of an intent to make the “ meander line ” the actual boundary of the fractional section," it must be treated as run for the purpose of ascertaining the quantity to be paid for by the purchaser, and the section extends, with the lines of its square mile, to the actual stream or lake. In the case before us, the intent to limit the fractional sections by the marsh, and to exclude the islands, is unmistakable. Hence, even if the evidence had shown that the marsh contained far more earth than water, and that hay could be cut, or cattle pastured, thereon, James could not hold the islands beyond the marsh.

But, as already stated, that evidence established the permanent presence of water between the islands and James’ meander line; that this water was maintained there by the lake and, for the purpose of constituting a boundary under the act of 1796, was a part of the lake. It is true the channel between the meander line and the islands was not navigable, but that, in our view, is immaterial. The statute does not read “ navigable water,” or “ navigable channel,” but “ navigable rivers.” Hence, where a river itself is navigable, the government surveyors may treat any part of such river as a boundary, as well a part that will not permit the passage of a boat, as those deep enough to float the largest vessel. .

Rice and Lytle treated the bank along the southern edge of the so called “impassable marsh and water” as the shore of lake Erie; the marsh as a part of the lake, and Cedar, Sandy and Crane, as islands in that lake. It does not appear that the commissioner of the land office disapproved, their action. We think their action was legal, and the judgments complained of are

Affirmed.  