Kinsella v. Stephenson

Mr. Justice Craig delivered the opinion of the court: Appellant urges that the court erred in dismissing-his bill of complaint for want of equity as to the tracts claimed by appellees, Olds and Swannell, respectively, and in not also dismissing the cross-bill of Olds. It was proper, under the circumstances, to grant relief on the cross-bill of Olds. Wachter v. Blowney, 104 Ill. 610; Houston v. Maddux, 179 id. 377. The only paper title claimed by Kinsella to any part of the land in controversy is his contract and deed from Sheridan, and a deed from Whitehouse to Sheridan, executed in 1882, conveying the north-west fractional quarter of section 23. There was no deed from anyone to Sheridan of the north-east quarter, and the title of complainant to that quarter must rest upon his adverse possession as al-. leged, or upon his claim that the original grantees of- the south-east quarter and south-west quarter of section 14, the same being fractional quarters as shown by the government survey, took all the land to the thread or. current of the Kankakee river, and that the land became his by alluvion and accretion. A grant of land bordering on a stream, whether navigable or not, carries title to the center thread of the stream unless the boundary is in some other way designated. (City of Peoria v. Central Nat. Bank, 224 Ill. 43.) A meander line which is run for the purpose of ascertaining the amount of land in a fractional section cannot be regarded as a boundary line. (Houck v. Yates, 82 Ill. 179; Middleton v. Pritchard, 3 Scam. 510; Canal Trustees v. Haven, 5 Gilm. 548.) These cases, however, were decided" on the ground that the river itself was taken as the actual boundary of the land. In Houck v. Yates, supra, the riparian owner had title to the west fractional half of the northeast quarter and the fractional north-west quarter of section 5, the lines of which running south extended to the center of the then channel of the Mississippi river and included the land in controversy. The court, on page 182, said: . “Had any corner or monument been established to mark the southern boundary of appellee’s purchase, by the government surveyors, such would have been conclusive. That, however, did not occur, but the river seems to have been left to mark the southern boundaries of the land.” In Granger v. Swart, 1 Wol. 90, it was held that if between the meander line by which the government survey was made, and the bank of the river, there is at the time a body of swamp or waste land or flats in which timber and grass grew and horses and cattle fed, then the patents for the land surveyed would not cover this land but be confined to 'the limits of the meander line and include no more. In Lammers v. Nisson, 4 Neb. 245, it was held that the mere fact that a meander line was run and was designated upon the plat was not conclusive and would not estop the government from disposing of lands left unsurveyed between such line and the bank of the stream; that to do otherwise would prevent the correction of mistakes made by surveyors in such case. In Bissell v. Fletcher, 19 Neb. 726, the court held that where the plat and patent to the plaintiff was to lot 3, containing 52.60 acres, and to run north to the Republican river, he was not entitled to claim lots 6 and 7, containing about 117 acres, and which, in fact, was land between the river and where the plat showed the bank to be. • Section 10,144 of the Revised Statutes of the United States (Pierce’s Code) provides: “The boundary actually run and marked in surveys returned by the surveyor general shall be established as the proper boundary lines of the section or subdivision for which they were intended, and the length of such lines as returned shall be held and considered as the true length thereof, and the boundary line which has not been actually run and marked shall be ascertained by running straight lines from established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the boundary line shall. be ascertained by running from the established corners to north and south or east and west lines, as the case may be, to the water-course, Indian boundary line or to the external boundary of such fractional township.” In Clute v. Fisher, 65 Mich. 48, it is said: “The land described as a fraction of any subdivision, as, for instance, the south-east fractional quarter, cannot be extended beyond the lines of said subdivision as they would run if extended.” A grantee, by patent, of a legal subdivision of land can not thereby derive title to land upon another legal subdivision. (Farmers v. Dodge, 64 Mich. 175; Wilson v. Hoffman, 54 id. 246; Keyser v. Sutherland, 59 id. 455.) The purchase of a fraction of a quarter section could not give to the purchaser a larger body of land than a grant of the whole would give. Edwards v. Ogle, 76 Ind. 307. In the case of Sawyer v. Cox, 63 Ill. 130, this court said: “The object of these surveys is, first, if practicable, to find the original corners established by the surveys made by the authority of the government. It is by those lines and corners the government sold and persons purchased the public land, and when sold, the purchaser, by his patent, acquired title to all of the land embraced within the boundary lines of the tract thus purchased. When the lines and corners established can be found and identified the purchaser acquires title to all the lands embraced within their limits, and it does not matter whether the surveys are accurate, as the boundaries, when found, must control the notes or plat of the survey, hence they govern the calls for course, distance and quantity. The plats and notes of the survey are intended to represent what was done in the field and must yield to the lines and corners when found, but when they have become obliterated and cannot be found and traced by natural or artificial monuments, they can only be re-located by the field notes and plats of the original survey, and in doing so then resort must be had to known lines and monuments as a basis on which to survey and find where the original lines and corners were established by the government surveyors.” And in Fuller v. Shedd, 161 Ill. 462, this court held that the section lines could not be passed when a lake was so large that the extension of those lines would not absorb it. In James v. Howell, 41 Ohio St. 696, the court refused to extend the meander line across a space designated as an impassable marsh and water so as to include two islands, the computed acres in the grant not including either the marsh, water or island. In Shoemaker v. Hatch, 13 Nev. 261, the court said: “To determine whether a bar or island is part of the land on either side of a stream, account must be taken, in every case, of a variety of circumstances, such as the relative size and permanence of the channels, the size of the island compared with the size of the stream, and the conformity or divergence of course between the main line and the main channel. It is a question of fact to be determined from all the surrounding circumstances whether the land between a meander line and the shore of the lake or water-course is included in the survey.” In Martin v. Carlin, 19 Wis. 454, there was .a mistake' in the original survey and meandering of Rock river, so that there was more land than the survey called for by the field notes. It was held that where there is a mistake in the survey of a fractional lot, so that either the line of a meandered stream or a quarter section line (both of which were called for by the survey as constituting the line) must be abandoned, the quarter section line should be adhered to as the more certain call. ■ In the case of Fuller v. Shedd, supra, after citing the foregoing cases, this court, in its opinion by Mr. Ju'stice Phillips, said: “From these cases it would follow the construction of the grant would be: where a narrow strip of land lies between the meander line and the natural boundary, as a stream or river, and its proportions are much smaller than the land granted, it would be included in the grant and the center of the stream or river would be the boundary unless a different intention was manifested by the terms, used. Where the land outside the meander line is so grossly in excess of that sold that it is apparent there is fraud or mistake in the survey, the meander line would • be the boundary.” In the case at bar, while there is no evidence of either fraud or mistake in the survey of 1834, by which the meander lines were established, the river at its usual • stage of water did not form the boundary of the south-west quarter and south-east quarter of section 14, and the meander lines were run as they were because of high water at the time, the Kankakee river having overflowed its banks so that it was impossible to establish the south-east corner of section 14, which would be the north-east corner of section 23. We gather from the evidence in the record that the main - channel and banks of the river at the ordinary or low stage of water were in about the same place at the time of the survey of 1834 as they were when the suit was tried, and that between the meander lines as run by the surveyor and the bank of the river were large portions of the south-east quarter of the south-west quarter of, section 14, and also the premises in dispute in the north part of the north-east quarter and north-west quarter of section 23. This was heavily timbered in part, with large trees growing thereon, and some pasture when the river subsided within its banks. As we have stated, the south-west corner of section 14 was established and marked and a basis made for running the section line between sections 14 and 23 and so determining the proper boundary lines between those sections. We are therefore of the opinion that the grantee from the government of the south-west quarter and the south-east quarter of section 14, and the subsequent grantees down to Kinsella,. took by their deeds the quantity of land as originally surveyed by the government and denoted as fractional, and also took all of the land contained within the boundary of said quarter sections when the same should be established, but they would not thereby take title to any land outside of the said quarters, and would not take any title thereby to any lands in section 23. Nor do we think that appellant is in a position to claim any title to the lands .in question by alluvion and accretion, as being a part of section 14 by reason of the subsidence of the Kankakee river, for the reason that he has estopped himself, both by the' allegations of his bill and the deed under which he claims title, from insisting such lands are not a part of section 23. In the deed the land is described as being in section 23, and in the bill filed by him in this cause he has specifically alleged that the lands in question are in section 23, and more particularly in that part of sec- " tion 23 which is north of the Kankakee river. He is now estopped by these acts from insisting that the land is not in section 23. (Millard v. Millard, 221 Ill. 86; Smith v. Young, 160 id. 163.) Furthermore, the land between the meander lines and the river was simply the overflow land from which the high water subsided when the river was at the normal or low stage. As to the title claimed by appellant by twenty years’ possession, to establish such title by limitation by twenty years’ possession it was necessary to show, first, that such possession was hostile or adverse; second, actual; third, visible, notorious and exclusive; fourth, continuous; fifth, under claim of ownership; and such elements must be made out by clear and positive proof. (Clark v. Jackson, 222 Ill. 13; McClellan v. Kellogg, 17 id. 498; Towle v. Quante, 246 id. 568.) The question of possession depends to a great extent upon the character of the lánd and the circumstances. As we have shown, the tracts of land in dispute were overflow lands, covered with water and inaccessible for ordinary use during much of the time, and owing to the character of the land and its uninhabitable condition no very pronounced acts of ownership or possession were possible. The lands comprising the so-called Sheridan ranch appear to have been fenced, and the fences extended along the east and west sides of section 14 south to the Kankakee river, thus enclosing on the east and west sides the lands in dispute. It also appears that the cattle pastured by different tenants on the Sheridan ranch ranged over this land at times, and, as some witnesses testified, when the water was low they would cross the river to the south, and cattle owned by others, pasturing on the south of the river, would cross over to the north onto the lands in dispute. • It also appears that certain persons, under permission from Sheridan, the former owner, at different times cut wood upon portions of the land in dispute, but this evidence is not very definite. For many years there was no boundary line established between sections 14 and 23, and it is not shown very clearly whether the wood that was cut and hauled off in the winter time under permission from Sheridan was on section 23 or section 14. George Olds, father of appellee Abe Olds, had the record title to the north-east quarter. From the time he first obtained title to this land, in 1851, he was in possession of the same, as far as such possession was possible. He cut and sold wood, hewed timber from the land, warned trespassers off the land, and exercised acts of ownership both before and after Sheridan bought the adjoining land, in 1882. After he conveyed the land to his son, Abe Olds, in -1892, the latter had a saw mill there one winter and took wood from it. Soon after he got his deed he had the north line of said north-east quarter of section 23 between that section and the south-east quarter of section 14 surveyed and established, built a wire fence along such line, and afterwards turned his hogs in on said land, warned trespassers off of the said land, and exercised such other acts of ownership over it as were possible in its then condition. Sheridan testified that he cut the fence when he heard that it had been placed there, and there is evidence that wires were cut by hunters and fishermen at times of high water so they could get their boats through. Olds states the fence was cut and washed out at times and he kept it in repair as best he could. He testified that on one occasion he had a conversation with Sheridan, which is not denied, about some poles that had been cut on the river bottom, and Sheridan stated that if they had been cut on Olds’ land he would pay for them, and if Olds had cut any on his land he should have to pay for them. He also testified that shortly after he had fenced this land Sheridan tried to buy it from him and made an offer, and he offered to take a larger amount, but they could not agree on the price. Without discussing all the evidence bearing upon the question of possession, we have given the same such consideration as we think it is entitled to, and on the whole are satisfied that the circuit court did not err in its finding as to the possession and ownership of the land. Such possession as Sheridan had or claimed to have, under the circumstances was not, as shown by the evidence, hostile, exclusive or under claim of ownership. As to the title to that portion of the north-west quarter of section 23 north of the Kankakee river claimed, respectively, by Kinsella and Swannell, Sheridan, the grantor of Kinsella, did obtain a deed from Whitehouse to said land. No title, however, is shown in Whitehouse and no reason or authority for such conveyance is given. He was a stranger to the title and such deed is not explained. William G. Swannell secured a deed for 7.41 acres of the same in 1861, the land being sold for taxes for the year 1858. Thereafter Swannell paid taxes on the land for several years as containing 47.25 acres. In 1876 the lands were again sold for delinquent taxes levied upon the tract as the north fractional north-west quarter of section 23, Swannell becoming the purchaser at such tax sale. On February 2, 1882, Swannell and wife conveyed the land to Frederick Swannell as containing 47.25 acres, and thereafter, from 1882 to 1890, inclusive, and ever since that time, the taxes have been paid by the Swannells on 47.25 acres. It further appears that on February 16, 1890, M. J. Sheridan, the then owner of section 14, had some correspondence with William G. Swannell relating to the renting of Swannell’s land in section 23, and in replying to a letter of Swannell Sheridan says: “Yours referring to the leasing of your land in section 23 received some time ago. Replying will say that your land is all swamp timber and could not be of any use to me. Before I bought my land the timber was all cut off yours, but since I have kept people off of it, as they would cut over on mine if I allowed them to cut near there. There is now a very nice growth of young timber coming, which will be worth something in a few years if protected. The last year was the first in which anyone could get onto your timber during the summer since I bought my land, in ’80 or ’82.” There is also evidence to the effect that on several occasions there were negotiations between Sheridan and Swannell, and after Swannell’s death with his executor, relating to the purchase of this land, and from a survey of all of the facts and circumstances we do not feel disposed to hold the court’s conclusion that the weight of the evidence shows that Sheridan had recognized both Olds and Swannell as being the owners of the property which is now in dispute was erroneous. In Sheridan’s contract with Kinsella, made in 1909, it was shown that he agreed to sell and convey 1200 acres of land, more or less, in sections 14, 15, 16, 21 and 22, and quit-claim any land in section 23 now standing in his name of record, guaranteeing a merchantable title to at least 1200 acres. It appears that subsequently, under this agreement, a survey was made of the Sheridan lands, and, outside of any land in section 23 claimed by either Olds or Swannell, Kinsella acquired the title to 1260 acres. After the commencement of the suit Sheridan stated to the executor of the Swannell estate that he did not want Swannell to think that he was deeding property upon which he had no claim or title or was trying to steal it; that he had made a contract with Kinsella to convey him certain land but had not intended to sell section 23; that he told Kinsella he had no claim whatever to the Swannell land; that it belonged to the W. G. Swannell estate, and that he still knew that to be the case. The fact that his cattle and his tenant’s cattle were allowed to roam over the land whenever it was dry enough, or that he allowed wood to be cut and sold therefrom near the dividing line, would' not support a claim of ownership or possession, as it appears he had never leased or attempted to exercise any acts of ownership or possession over lands outside of section 14. Under the circumstances we think the court properly decreed that appellant had no interest in the Swannell tract. We find no error in the decree sufficient to warrant a reversal, and the decree of the circuit court will be affirmed. Decree affirmed.