Hardin v. Shedd , 23 S. Ct. 685 ( 1903 )

Mr. Justice Holmes

delivered the opinion of the court.

This is a proceeding under the Burnt Becords Act of the State of Illinois, by which the defendant in error, Shedd, seeks to establish his record"'title_to certain land adjoining and under a non-navigable lake called Wolf Lake, lying partly in Illinois and part-ly in Indiana. The plaintiff in error, Hardin, also owns land adjoining the same lake, by succession to a title under patents from the United States, and under these patents makes claims to land now or originally under the lake, which conflict with the claim of Shedd and with'the decree of the. court. ' The other plaintiff in error is a grantee of Hardin. The decree having been affirmed by the Supreme Court of the State, 177 Illinois, 123; S. C., 161 Illinois, 462, the case is brought here by writ of error. Mitchell v. Smale, 140 U. S. 406, 410; Shively v. Bowlby, 152 U. S. 1, 9, 10. It seems unnecessary to go into details of the difference, as the main question here goes to the foundation of Hardin’s case, and we are against her on that.. Her title and a plan of the territory in which lies the disputed land will be found set out in Hardin v. Jordan, 140 U. S. 371.

The claim of the plaintiffs in error to the land below the original water line depends on its having passed by the patent of the United States. The patent to Holbrook, from which they derive an important part of their title, was dated May 20, 1841, long before the Swamp Land Act. At that time the land under the lake, as well as that surrounding it, belonged to the United States, and ii grants of the United States should be construed without regard to state laws, it may be assumed that, subject to all questions of the proper adjustment of lines, Hardin would have prevailed. When land is conveyed by the United States bounded on a non-navigable lake belonging to it, the grounds for the decision must be quit^ different from the considera-^ tions affecting a conveyance\df land bounded on navigable water. In the latter case the land under the water does not belong to the United States, but has passed to the State by its admission to the Union. Nevertheless it has become established almost without argument that in the former case as in the latter the effect of the grant on the title to adjoining submerged land will be determined by the law of th A State where' the land lies. In the case of land bounded on a non-navigable lake the United States.,assumes the position of a private owner subject to the general law of the State, so far as its conveyances are concerned. Hardin v. Jordan, 140 U. S. 371; Shively v. Bowlby, 152 U. S. 1, 45; Grand Rapids & Indiana R. R. Co. v. Butler, 159 U. S. 87, 90, 93; St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S. 349, 363. (Such cases are not affected by Rev. Stat. §§ 2476, 5251.) When land under navigable water passes to the riparian proprietor, along with the grant of the shore by the United States, it does not pass by force of the grant alone, because the United States does not own it, but it passes by force of the declaration of the State which does own it that it is attached to the shore. The rule as to conveyances bounded on non-navigable lakes does not mean that the land under such water also passed to the State on its admission or otherwise, apart from the Swamp Land Act, but is simply a convenient, possihly the most convenient, way of determining the effect of a grant. We are particular in calling attention to this difference, because we fear that there has been some misapprehension with regard to the point,

The law of Illinois has been settled since Hardin v. Jordan, 140 U. S. 371, and it now is clear, by the decision in this case and later, that conveyances of the upland do not carry adjoining land below the water line. Fuller v. Shedd, 161 Illinois, 462; Hardin v. Shedd, 177 Illinois, 123; Hammond v. Shepard, 186 Illinois, 235. Following these decisions, we must bold that the title set up by the plaintiffs in error fails. Even accepting the principles of the common law, it may be a question whether one consideration in this case was not Overlooked in Hardin v. Jordan. It was noted that the conveyance was by reference to th e official plat. The plat of the Illinois portion, unlike that of the part in Indiana, describes the'lake as a “ navigable lake.” It is true that this was a mistake, but it might be urged that the description must be taken to have the same effect as if it were true when we are determining the effect of a conveyance adopting it. It would seem that if a conveyance of land bounded by navigable "water -would not pass land below the water line, a conveyance purporting to bound the land by navigable water does not purport to pass land below the water line. The common law as understood by this court and the local law of Illinois -with regard to grants bounded by navigable water are the same. Shively v. Bowlby, 152 U. S. 1, 43, 47, 51; Seaman v. Smith, 24 Illinois, 521.

Of course, it would result from the Illinois ruling that the survey of the submerged land in 1874, referred to in Hardin v. Jordan, and the conveyances in pursuance of it, may have been good on the Illinois side of the state line, unless the State had got a title before that date under the Swamp Land Act. Whether it did so or not, it is unnecessary to consider in this case.

The land which Shedd gets under the decree of the state court he gets, not in derogation of the foregoing principles, but on findings of fact as to what land was above water at the date of the patents from the United States, 161 Illinois, 469, 470, and as to accretions to that land by the gradual drying üp of-.the water at a later date. 161 Illinois, 473, 494. We perceive no need for considering the decree in detail.

Decree affirmed.