Glasscock v. National Box Co.

Kirby, J., (after stating the facts). It is attempted to be shown that Bagwell’s Lake, at the time of the government’s survey thereof and the designation of it upon the plats and maps of the General Land Office, was not in fact a lake but only swamp and overflowed lands, and the preponderance of the testimony appears to be in favor of this position, but the question was tried before the court sitting as a jury, and it has found otherwise upon testimony sufficient to sustain the judgment. It is not questioned that the government had patented to the State all the lands surrounding said lake and abutting thereupon, as shown by its plats and surveys as swamp and overflowed lands, selected by the State under the grant of 1850, and that the State had in turn conveyed its interest in all of said lands patented to it by the same description to its grantees, and that appellee has succeeded to this title. It is further undisputed that the State by the Land Commissioner’s quitclaim deed of May 1,1893, attempted to convey the 1,560.71 acres of land shown on the government’s map and plat of its survey of lands on file in the State Land Office to be unsurveyed and within the meandered line of Bagwell’s Lake, by the description shown in the deed and alleged in the complaint, and that plaintiffs succeeded to three-tenths of whatever interest was conveyed in said lands to the Arkadelphia Lumber Company by said deed from the State. It is claimed that this conveyance of these lands by the State and the approval and confirmation of the grant thereof by the Congress of the United States in 'the act of 1898, the Arkansas Compromise, amounted to a correction in the survey, and passed the title to all of said lands to the State’s said grantee. Upon the other hand, it is contended by the appellee that the government having, in the first instance, made the survey, dividing and sectionizing all the lands surrounding the lake and showing them to border upon the meandered line thereof, and having granted and patented said lahds to the State by the description and in'accordance with the maps and plats of the survey, and the State having by patents with like descriptions parted with its title to its grantees, the grantees of the lands surrounding the lake, as shown thereby, by riparian right became the owners of the bed of the lake, and that the government and the State were thereafter without right to dispose of it by patent or otherwise. In Little v. Williams, 88 Ark. 37, this court said: “The legal effect of the patents to the State of the fractional sections and parts of sections surrounding the meandered lines of the lake, according to the official plats of the public survey, was to convey all riparian rights and by virtue thereof to vest prima facie title to the bed of the lake, as shown on the plats from meander shore lines to center. The conveyance executed by the State in turn to its grantees had the same effect. Hardin v. Jordan, 140 U. S. 371; Mitchell v. Smale, 140 U. S. 406.” See Johnson v. Elder, 92 Ark. 39. In Hardin v. Jordan, supra, the United States Supreme Court said: “It has never been held that the lands under water in front of such grants are reserved to the United States, or that they can be afterwards granted out to other persons to the injury of the'original grantees. The attempt to make such grants is calculated to render the title uncertain and to derogate from the value of natural boundaries, like streams and bodies of water.” In Mitchell v. Smale that court said: “We think it a great hardship, and one not to be endured, for the government officers to make new surveys and grants of the beds of such lakes, after selling and granting the lands bordering thereon, or represented so to be. It is nothing more nor less than the taking from the first grantee a most valuable and often the most valuable part of his grant.” Thus it will be seen that that court- has also held that the title to the bed of lakes of this kind passed because of the riparian rights to the adjoining owners where the lake was not surveyed as land nor described on the plat as land, but as lake. It has already been determined that an individual can not question the correctness of a survey made by the government, nor acquire and assert rights in unsurveyed lands which the government has never asserted against the riparian rights of the adjoining owners. If the government had attempted to correct the survey, and had sectionized all the land situated within the meandered line of Bagwell’s Lake, and thereafter conveyed same, by patent or otherwise, to other grantees, it would not have had effect to deprive the original grantees of their riparian right to the bed of the lake upon which their lands bordered, if it was in fact a lake at the time of the first survey thereof. The court, in this case, having found that the lands claimed by appellants within the meandered lines of Bagwell’s Lake, as shown at the time of the original survey, were in fact under the waters of the lake at that time, they passed then by the government’s first patents to the State, the owner of the land surrounding and' bordering upon the lake by riparian right, and by the State’s patent likewise to its grantees. The State, having thus parted with all its right and title to the lands in the bed of said lake attempted to be conveyed to the Arkadelphia Lumber Company by its Land Commissioner’s deed, had no title at that time, and could convey none, and the selection of said lands as described in that deed and the report to the General Land Office and approval thereby of the selection and the confirmation of the title to the State’s grantees to said lands by the said act of Congress, could have no effect to vest any title in said grantee, the government and the State, each and both, having already before then parted with all title and right to said lands as above stated. It follows that appellants were without title to all of the lands claimed at the bringing of this suit, except the west fractional half of section 4 not in the lake; and, since they must recover, if at all, upon the strength of their own title, they are without right to do so, except as to the timber cut from said fractional section 4. As to that, the evidence was contradictory, and, the court haying found the value in their favor fo be but $30, its finding is conclusive here, and the judgment will be affirmed. It is so ordered.