Bourgeois v. United States

Kunzig, Judge,

delivered the opinion of the court.

Plaintiff in this Fifth Amendment taking case of first impression attempts to recover the value of an island allegedly appropriated by the Government in 1971 in a land-locked, non-navigable lake. In her motion for summary judgment, plaintiff asks the court to find that, as a matter of law, she held title to the island until its appropriation by the Government. By cross-motion, defendant would have us determine that plaintiff did not hold title to the island and cannot recover for an alleged taking. To the extent outlined below, we hold for plaintiff.

The history of the present dispute can be traced to 1846. In that year, Michigan Township No. 26 N was first surveyed. The surveyor meandered a lake now known as Jewell Lake. Unfortunately, the disputed island was omitted from the survey and the 1846 Plat. The 1846 survey divided the land adjoining the lake into five lots in two sections. Lot No. 1 of Section 4 contained 47.12 acres; Lot No. 2 of Section 4, 53.30 acres; Lot No. 1 of Section 5, 43.89 acres; Lot No. 2 of Section 5, 30.0 acres, and Lot No. 3 of Section 5, 43.0 acres. This survey can perhaps be better explained by the following graphic illustration:

On January 15, 1866, defendant, pursuant to the Bounty Land Act of 1855 granting land to war veterans, patented Lots No. 1 and 2 of Section 4 to Wm. E. Dodge as assignee of Elizabeth Phillips, the widow of a War of 1812 veteran. The patent was for 100.42 [47.12+53.30] acres of land. However, as the island was omitted from the survey and the Plat, it was also omitted from the patent. At about the same time, defendant also patented the remainder of the shoreland without reserving title to the island.

In 1939, plaintiff and her now deceased husband purchased Lot No. 1 of Section 4, originally patented to Dodge in 1866. Plaintiff claims and defendant does not contest, that upon her husband’s death, she acceded to entire ownership of this interest. Although the record is somewhat unclear as to the grantor, it appears that in 1939 defendant reacquired Lot No. 2 in Section 4, either from plaintiff or from plaintiff’s grantor. Defendant states that it received the lot from “Milton L. Whiteman.”

In 1958 the island was surveyed for the first time and the official Plat was accepted on August 4, 1959. The island appears on this Plat as Lot No. 3 of Section 4 (5.54 acres) and Lot No. 4 of Section 5 (1.22 acres). The following illustration shows the redrawn Plat:

In 1971 the Government “posted” the island as Government land, and plaintiff began her attempt to vindicate her asserted rights to the island.

Plaintiff now moves for summary judgment, arguing that title to the island passed at the time of the 1866 patents and that defendant, by its action in 1971, has taken her land without just compensation. Defendant counters in its cross-motion that it never parted with title to the island, has owned it continuously since 1846 and before and, accordingly, has not taken any land belonging to plaintiff.¹

We bold that defendant transferred title to the island when it patented the lands on shore in 1866. Accordingly, we hold that insofar as plaintiff can prove her ownership of Lot No. 1 in Section 4, she is entitled to recover.²

Unquestionably, in 1866 defendant passed title to all lands adjoining Jewell Lake, a land-locked non-navigable body of water. Because the patents to such grants are silent as to the island currently in dispute, and the clear intent of the grantor is at best ambiguous, the court must fathom the intent of the grantor at the time the shoreland was ceded. As far as can be determined, this question is one of first impression.

We start with the general proposition that in interpreting the intent of the Government when reviewing a federal grant, federal, not state law controls. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 320-21 (1973); Hughes v. Washington, 389 U.S. 290, 292 (1967); Borax Consolidated Ltd. v. Los Angeles, 296 U.S. 10, 22 (1922). Moreover, as the statutes are silent as to tlie construction of federal patents, such interpretation, of necessity, involves an 'analysis of federal common law.

A survey of federal cases reveals that there are two distinct lines of demarcation in evaluating title to islands when the shoreland is patented: navigable water cases, and non-navigable water cases. Based on the briefs filed in the instant case, and the oral argument, it appears to be uncontroverted that Jewell Lake is non-navigable.

In the navigable water cases, ownership in the navigable stream beds passed to the state at the time of admission of a state into the Union both under federal statute and os a concomitant of state sovereignty. Bonelli Cattle Co., supra. However, where the Federal Government patents shoreland along navigable waters without denoting an intent to pass title to off-shore islands, it has been held that title to the islands remains with the Federal Government. Scott v. Lattig, 227 U.S. 229 (1913).

In the non-navigable waters area, the situation becomes quite different. Insofar as the title to non-navigable water beds is concerned, federal law looks to the law of the state in which the land lies or common law, if no clear intent is expressed in the patent. Oklahoma v. Texas, 258 U.S. 574, 594-95 (1922); Hardin v. Jordan, 140 U.S. 371, 384 (1891); Mitchell v. Smale, 140 U.S. 406 (1891).

Were there no federal interest whatsoever in this matter, the solution would be clear. Both parties admit that Michigcm law is to the effect that a conveyance of shoreland on a non-navigable body of water will pass title to unsurveyed islands in the body of water to the grantee of the shoreline property. Ottawa Shores Home Owners’ Assn. v. Lechlak, 344 Mich. 366, 73 N.W. 2d 840 (1955); Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 227, 236, 60 N.W. 681, 684 (1894); Webber v. Pere Marquette Boom Co., 62 Mich. 626, 30 N.W. 469 (1886); Fletcher v. Thunder Bay River Boom Co., 51 Mich. 277, 16 N.W. 645 (1883). Cf. Grand Rapids & IR Co. v. Butler, 85 Mich. 246, 48 N.W. 569, aff’d, 159 U.S. 87 (1895).

But we have said above that when reviewing a federal grant federal law applies, and determining intent involves an analysis of federal common lamo.

It is clear that given no indicia of patentor intent, if this were a navigable water “bed ease,” the bed would belong to the state. If it were a navigable water “island case,” the island would belong to the Federal Government. If it were a non-navigable water “bed case,” the bed would belong to the shore owners in “pie-shaped” fashion to the center of the body of water under federal common law which looks to the law of the state (in this case, Michigan). Grand, Rapids Ice & Coal Co., supra. However, this is where the clarity ends, for the parties have not cited, nor can we discover, any non-navigable water “island cases,” where intent of the Federal Government in patenting shoreland is not expressed.

Obviously, plaintiff attempts to rely on the non-navigable water “bed cases” under which doctrine she would have obtained title to at least part of the island in question under federal law and the law of Michigan via the 1866 federal grants to Wm. E. Dodge. On the other hand, defendant urges application of the navigable water “island cases” under which it has been held that the Government retains title to islands despite the patent of shorelands. Given the fact that there are no non-navigable “island cases,” we must determine which analogy is better suited to the instant situation.

As an initial matter, we take note that the intent of the Government (to grant or retain the islands in its 1866 patent) cannot be fathomed. The grant fails either to convey or to ■reserve the island. The grant itself specifies the acreage of the patent based upon the shoreland only, but this is more likely than not due to the fact that the island was inadvertently omitted from the 1846 Plat. From the size of the island (6.76 acres), its relative remoteness and rather small value in 1866, it can, at best, be inferred that in 1866, neither the Government nor the patentee cared much about who held title to the island. Finally, if anything, the fact that the Government patented all the other land around the lake in' 1866 denotes the probability that if it had been aware of the island’s existence, it would have patented the island also.³ In total, the factors bearing on intent produce no definitive re-suit. Accordingly, we must fashion a rule to construe title to islands in non-navigable water cases.

Given the choice between the navigable water island cases and the non-navigable water bed cases, the best analogy is the non-navigable water bed law. To reach this result we concentrate on the fact of accessibility, particularly with reference to the time of the grant. In the navigable water island cases, the Government could, with impunity, cede title to shoreland while retaining access by the navigable water route.

The non-navigable water bed situation presents a quite different picture. Here, where the land bordering a non-navigable body of water is ceded, the beds pass (unless the intent of the grantor is expressly stated to the contrary) according to state law. Under Michigan law, title to the beds passes to the shoreland owners. It would make little sense for the Government to pass title to all shorelands without reserving access easement to islands and expect to be able to use either the water or the beds, particularly in 1866 before the advent of air travel.

Thus it is equally obvious in the non-navigable water situation that a grant which passes shoreland and beds to a patentee should also pass title to midstream islands absent a clear expression of contrary intention by the grantor. In the instant case, having ceded all of the shoreland around Jewell Lake, and having failed to reserve an easement, there would have been absolutely no way for defendant to use the island in question.

Accordingly, under federal common law, we hold that if the intent of the grantor is ambiguous and the Government grants shoreland along non-navigable waters, it also passes title to islands according to the law of the state in which the property is located. Therefore, in the instant case, under Michigan law the 1866 patent of Lot No. 1 of Section 4 to Wm. E. Dodge also passed title to at least a portion of the island whose title is currently in issue. Such grant gave Dodge title to underwater beds and the island as measured in “pie-shaped” fashion. Grand Rapids Ice & Coal Co., supra. Thus, the grant included beds and island land lying in the angle formed by drawing a line from the center of Jewell Lake to the northwestemmost point of Lot No. 1 on the shoreline, and another line from tbe center of the lake to the south-westernmost point of Lot No. 1 on the lakeshore, according to the following illustrated approximation:

If plaintiff can adequately establish that she has succeeded to Dodge’s ownership interests in Lot No. 1, she will be able to recover for defendant’s 1971 taking ⁴ of'that portion of the island belonging to her.

On remand, the following items, among others, remain to be (resolved: (1) Plaintiff’s title to Lot No. 1, 'Section 4, Township No. 26 N, Range TE, Michigan Meridian, Michigan; (2) the center point of Lake Jewell; (3) the island acreage owned by plaintiff, if any, taken by defendant in 1971, and (4) the value of the island (and plaintiff’s portion of the island) appropriated by defendant without just compensation.

Accordingly, plaintiff’s motion for summary judgment is granted, defendant’s cross-motion for summary judgment is denied, and the case is remanded to the Trial Division for further proceedings consistent with this opinion.

1 In its answer, the Government raises defenses which are not before the court on these cross-motions for summary judgment. However, one assertion by defendant — that this suit is really one to quiet title and therefore within the exclusive jurisdiction of the district courts under 28 U.S.C. 2409a and 1346(f)-must be addressed, as it strikes at the power of this court to hear the action.

28 U.S.C. 2409a (enacted in 1972) states that it does not affect actions which could be brought under 28 U.S.C. 1346 or 28 U.S.C. 1491. Cf. Manning v. United States, 200 Ct. Cl. 739 (1972). Under 28 U.S.C. 1491, the Court of Claims has long had jurisdiction over Fifth Amendment taking cases. Causby v United States, 328 U.S. 256, 267 (1946). This court is not denied jurisdiction now, simply because there is a quiet title issue involved in determining entitlement to just compensation ml non. As the Supreme Court stated in Malone v. Bowdoin, the Court of Claims is an appropriate forum where plaintiff can try title by seeking just compensation for the taking of land by the United States. 369 U.S. 643, 647 n. 8 (1962). (Note that Malone preceded the enactment of 28 U.S.C. 2409a by ten years.) Carlson & Carlson v. United States, 208 Ct. Cl. 1022, 1023 (1976), establishes the vitality of Malone in a post-1972 setting.

If plaintiff had brought suit to be restored possession of her land, perhaps the issue would be different and 28 U.S.C. 2409a might require this suit be brought in the district court. But this is not a suit for possession. It is a ¡ust compensation action and thereby within the historical jurisdiction of the court. To hold otherwise would allow defendant in its answer to determine the situs of an action by alleging governmental ownership. This we decline to do.

Judge Kashiwa, in dissent, makes much of the fact that plaintiff was allegedly “agreeable” to transfer the cause to ta district court. We question that plaintiff would “rather” be in district court. When the dissenting judge asked at oral argument whether plaintiff’s counsel would favor a return of the case to the district court were the Court of Claims to determine it had no jurisdiction, counsel indicated “[ujnder those conditions, your Honor, we would be satisfied to transfer the case to the district court.”

In any event, in open court at oral argument, counsel for the government clearly conceded “as between the parties, this court has jurisdiction to decide title, the issue which is now present. I believe that this court can decide title.”

2 We do not decide herein that plaintiff has proven her ownership of Lot No. 1, nor do we make any finding as to the value of the island, nor any conclusion as to the method of dividing ownership of the island among the various owners of shoreline property.

3 If the Government had not Intended to patent the Island, then It probably would have reserved am approach to the lake. This It did not do.

4 Evidenced by government posting of the property as government land, and the letter from the Department of Agriculture to plaintiff’s attorney pronouncing the island to be federal land. In addition to these acts (conceded by the Government), plaintiff alleges that the Government ordered her off the property, excluded her son, and refused to allow her to install electricity on the land. .