Schrader v. Kehr

Mr. Justice Farmer delivered the opinion of the court: This proceeding was begun under section 2 of the act of 1901. A notice was served upon the defendants to the petition, who were owners of lands and who did not join therein, of the day the petition would be presented to the court and application made for the appointment of a commission of surveyors to re-establish the corners and boundaries of the lands of the parties to the petition. The proceeding seems to have been begun and prosecuted upon the theory that the court could in said proceeding determine the portions of land formed by accretion and reliction of the river, belonging to the respective parties, and establish the corners and boundary lines of said portions so ascertained by the court. As said in the statement preceding this opinion, there is no dispute between the parties that the co-terminous riparian owners owned the lands formed by accretion and reliction, but what portion of said land is owned by each of them depends upon whether the side lines are extended from the old high bank of 1884 or from the bank as it existed in 1814. All parties are agreed that from whichever point the extension of the side lines is made, it is to be made to the present river bank, at right angles with the middle thread. On this point see City of Peoria v. Central Nat. Bank, 224 Ill. 43. The commissioners reported to the court that they adopted the line of the Rector survey of 1814, which was the bank of the river as it then existed, as tire point from which to extend the side lines, and established the side lines accordingly, and they reported the number of acres this gave to the parties in the land that had been formed by accretion between the river as it existed in 1814 and its present location. The accretion between the old high bank of 1884 and the river as it existed in 1814 was embraced within a straight extension of the side lines of the government surveys from the old high bank of 1884 to the river as it existed in 1814. These lines, as we have said, ran in a north-westerly direction, and the extension made by the commission from the place where the river was located in 1814 to the present location of the river was practically east and west. The effect of the report and its approval by the court appears to us to have been a determination of the title to the land in dispute, and it would seem the court and the parties so regarded it, for appellants moved the court to set aside and reject the lines of extension adopted by the commissioners and to adopt the line contended for by appellants. The entire argument of both parties in this court is devoted to a discussion of the question whether the erosion by the river between 1814 and 1884 and the submergence of the land to the old high bank of 1884 destroyed the land, and the accretions made by the river in changing to its present location are all to be distributed between the riparian owners as accretions from the old high bank of 1884 to the river as it now exists, or whether only the land between its boundary as surveyed along the river in 1814 and the present location of the river is to be considered as accretion. We do not think this question a proper one for determination in this proceeding. All that the commission of surveyors could properly do was to locate corners and boundaries that had been lost. They had the authority to • locate the boundaries and corners of the lands of the parties to the petition as run and established by the Rector survey of 1814, but they had no authority to determine the ownership of the lands made by accretion or where the extension of the side lines of the surveys- should begin in distributing between the parties the land thus formed. After the lost corners and boundaries had been located then the rights of the parties in the lands in controversy must be determined in a proceeding at law for that purpose. Krause v. Nolte, 217 Ill. 298, appears to us conclusive of this question. That case was an action of ejectment, and the trial court admitted in evidence, on behalf of the plaintiff, a decree rendered in a proceeding under the act of 1901 for the establishment of lost corners and boundaries. The defendant was a party to that proceeding, and it was contended that because he filed no exceptions to the report of the surveyors the decree was binding and conclusive upon him. This court said (p. 304) : “The act of May 10, 1901, is the same as the act of March 25, 1869, upon the same subject. (Gross Stat. of Ill. of 1871, pp. 726, 727.) In construing the latter act this court said in Martz v. Williams, 67 Ill. 306, that .‘it nowhere confers power on .the commissioners to establish new corners or run new boundary lines, but simply to re-establish those once established by the United States.’ (Allmon v. Stevens, 68 Ill. 89.) In Irvin v. Rotramel, 68 111. ix, in speaking of this same act of March, 1869, it is said: Tt is evident from this section, and, indeed, from the whole tenor of the act, its object is to provide means by which lost corners may be restored and placed where they properly belong according to the original survey.’ What was said in the cases thus referred to in regard to the act of March, 1869, applies to the act of May 10, 1901. The object of the latter act is merely to restore and re-establish the corners and boundary lines once established by the United States. This being so, the proceeding is not one for the purpose of establishing the title of the parties to any portion or portions of the property as to which a boundary line is to be restored. Establishing title is an entirely different matter from re-establishing and restoring lost corners or disputed boundaries.' The decree in the proceeding under the act of May 10, 1901, cannot be set up as an estoppel against appellant or as res judicata upon the question of title.” A number of authorities of other States will be found cited in the opinion which support the decision reached in that case. While this question is raised by the assignment of errors it has not been discussed by counsel in their briefs, ex-, cept that a bare reference is made to it in the reply brief of appellants, and if this were a case where we could with propriety disregard errors assigned and not argued and pass only upon errors discussed in the briefs we would very willingly do so, but under our view of the law and as it has been heretofore decided by this court we feel compelled to reverse this decree and remand the case to the circuit court, with directions to refer back to the commission of surveyors their report, with instructions to modify and amend it in accordance with the views we have expressed. Reversed and remanded, with directions.