# State v. Tuesburg Land Co.

> Indiana Court of Appeals · June 25, 1915 · 61 Ind. App. 555

URL: https://www.frixlaw.com/law-library/cases/7067115

## Case

- **Full name:** State of Indiana v. Tuesburg Land Company
- **Court:** Indiana Court of Appeals
- **Decided:** June 25, 1915
- **Citations:** 61 Ind. App. 555; 109 N.E. 530; 1915 Ind. App. LEXIS 86
- **Precedential status:** Published
- **Opinion:** On rehearing by Hottel
- **Judges:** Caldwell, Hottel, Ibach, Moran, Pelt, Shea
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7067115

## Opinion text

On Petition for Rehearing.
Hottel, J.
In their petition for rehearing appellees say that the court has repeatedly stated in its original opinion in this ease that the official plat with reference to which all the conveyances were made shows the marginal lots to abut upon the meander line of the Kankakee River'. They insist that this is an erroneous statement; that the meander line of the Kankakee River “is not shown upon the original government plat.” This is a departure from the position taken by appellees in *603 their original brief. In such briefs in their statement of the “nature of the action”, appellees designate the lands in controversy as “lands * * * situated between the government meander lines of the Kankakee River” In their statement of the evidence they say: “In reference to the meander lines the field notes describe them as ‘meanders of Kankakee River commencing at post on west boundary, thence up stream on left bank”, etc. Many other references in their original brief are to the same effect. Upon this subject, the position originally taken by appellees and adopted by this court was in accord with the uncontradicted evidence in the ease. Such plat when interpreted in connection with the government field notes which appellees introduced in evidence and which were proper for no other purpose except to aid in arriving at a correct interpretation of the plat, shows clearly that such boundary, or border line, was in fact the meander line of such river as meandered by the government survey.
Our attention is also called to a statement in the original opinion that “all the patents executed by the State to marginal lots were pursuant to the act of the General Assembly of the State of Indiana, approved May 29, 1852.” We should have excepted from this statement, patent No. 54 to Edward Hawkins, for lot number 2 in section 21 and lot number 1 in section 28, both in township 33 north, range 3 west, which patent was issued under an act approved March 7, 1883, entitled “An act authorizing the sale and conveyance of certain lands belonging to the State,” etc. The exception of this patent from such general statement in the original opinion could have had no controlling influence on the conclusion reached which necessitated the reversal of the judgment, and for *604 the purposes of the real question therein considered and involved in this appeal, the effect of patent No. 54 is not of controlling importance and hence will not now receive further consideration.
11. 14. Appellees claim, in effect, that according to the original opinion the riparian doctrine was applied to the State’s patent from the United States on the theory that the meandered territory was a river in 1853 and such doctrine held inapplicable to the patents issued by the State because such territory had ceased to be a river in 1857; that it is begging the question to say that the meandered territory was a river in 1353 and ceased- to be such four years later. We do not think the original opinion subject to the interpretation which appellees thus seek to place on it. It is true that both the question whether the State received title from the United States government to the lands in controversy, and the question whether it parted with title to the same lands is made to depend on whether the meander lines of the Kankakee River, as indicated on the government plat adopted by both the United States and the State in conveying said lands, should be- treated as a boundary line limiting the lands surveyed and intended to be conveyed, or whether such meander line should be treated as marking the sinuosities of the banks of the meandered stream, and the stream itself, the natural monument, be treated as fixing the boundary of the lands conveyed. This court concluded that, as between the United States and the State such meander lines should be treated as marking the sinuosities of the Kankakee River, and that the natural monument, the river, should be treated as the boundary, and hence the State took title to the lands in question under the doc *605 trine of riparian ownership, but that as between the State and its grantees or patentees, such meander line should be treated as a boundary line marking and limiting the acres sold.
It is very earnestly insisted by appellees that in holding that such lands were not included in the patents issued by the State the court “lost sight of one controlling fact, or circumstance, and that is, the significance of the official plat.” Upon this subject they say: “Under the law plats were required to be filed with the county auditor and undoubtedly for the purpose of public information and they likewise became the basis of all sales and were equivalent to a declaration by the State as to the character and boundaries of thejands to be sold.” We entirely agree with this contention. Such plats, however, were no more a part of the public record than was the law which required them to be filed with the county auditor, and such plats, in so far as they were a declaration of the State, were made such by the law and they should therefore be read and construed in the light of that law. The difference between the intent expressed in, and the authority given, by the Act of Congress and the intent expressed and authority given by the act of the legislature furnishes the ground upon which the court based its conclusion that such line should be treated as a meander line of the river in the first instance, and a boundary line limiting the acres sold in the second instance.
When such plat referred to in the State’s patents is interpreted in the light of the act of the legislature authorizing its use, the meander line on such plat must necessarily be construed as a boundary line, marking and defining acres. The State’s officers or agents authorized to make such sales were required to make or adopt a survey that *606 measured the acres in each tract sold. The government plat did this, but it did it and could do it only on the theory that such meander line was a boundary line. By treating such line as a boundary line marking and limiting the acres in each tract to be sold, the agents of the State could and did ascertain the number of acres in the respective tracts sold, and in. so doing acted in strict compliance with the law authorizing such sales, which was the only authority that gave them any power to act in such matter. If said meander line is not treated as a boundary line then the State’s officers or agents never either made or adopted any survey which marked and limited the number of acres in the respective tracts sold by them, and hence violated the authority under which they acted.
16. The officers, authorized to act for the State in such matter, were as effectively bound and limited in their authority by the act of the legislature as an agent of an individual would be in acting under the same express authority in writing; and those who purchased through the agents of the State were charged with knowledge of the authority under which such agents acted, and the scope and extent thejreof the same as they would have been had they purchased from an agent of an individual with full knowledge of the authority under which he acted. This principle is in effect recognized and expressed in the case of State v. Portsmouth Sav. Bank (1886), 106 Ind. 435, 459 , 7 N. E. 379 , and is the principle on which the court, in its original opinion bases its interpretation of the patents issued by the State. This principle as indicated in the original opinion, has been recognized and approved by the later cases and finds repeated recognition by the courts of *607 other jurisdictions, including the Supreme Court of the United States.
11. 14. The patents themselves and all of the written evidence in connection therewith in this case show; that both the agents of the State, intrusted with such sales, and the respective patentees or purchasers of said lands treated the government plat as indicating and marking the number of acres in the respective lots sold by the State, and hence necessarily treated said meander line as one of the boundary lines of their respective tracts. It follows that in interpreting said plat, made a part of the patents issued by the State, the court has adopted that interpretation made necessary by the law which authorize both the patents and the plat, and in so doing has likewise adopted the interpretation placed on such patent by the parties themselves at the time the sales were consummated, as shown by all the written evidence and memoranda filed in connection with such sales and the issuing of the patents thereunder.
17. Finally it is contended by appellees that the opinion is in conflict with a number of decisions of the Supreme Court and has the effect of overruling such cases, and hence that this court has exceeded its authority; that if the opinion correctly interprets the views of the court the case should have been certified to the Supreme Court under §1394 Burns 1914, Acts 1901 p. 565. It is true that the original opinion recognizes that as to some of the questions involved there is apparent conflict in the decided cases, not only in this State but in other jurisdictions-as well. The opinion, however, follows the later decisions of the Supreme Court of this State in holding that the State took title to the land in *608 controversy, and in bolding that the State never parted with its title, the opinion, as before stated, is based on a principle that has been given recognition and expression in both the earlier and later decisions of the Supreme Court and by courts of other jurisdictions, as well, including the United States Supreme Court. Under such circumstances wé felt at- liberty to follow those cases which seemed to us to be supported by the better reason and authority, knowing that if our decision contravenes any, ruling precedent of the Supreme Court a method is provided by which appellees may obtain a consideration and determination of their case by such court.
Petition for rehearing overruled.
Note. — Reported in 109 N. E. 530 , 111 N. E. 342 . As to rights of riparian owners, see 79 Ann. Dee. 639; 7 Am. Rep. 179 . As to the power of counties to sell real estate as affected by swamp land act, see Ann. Cas. 1913 E. 530. See, also, under (1) 32 Cye 1369; (2) 32 Cyc 1026; (3) 32 Cyc 903, 904; (4) 5 Cye 892, 897, 899; (5) 32 Cyc 906; (6) 32 Cyc 9,05, 907, 909; (7) 5 Cyc 916; (8) 5 Cyc 899; 32 Cyc 804; (9) 32 Cye 801-803; (10) 32 Cyc 904r-906; (11) 32 Cye 925, 927; (14) 32 Cyc 1033; (15) 5 Cye 899, 900; (16) 32 Cyc 914; (17) 11 Cyc 745.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7067115. Public record. Not legal advice.