This is an action to quiet title to a tract of 660 acres lying within the meander lines of Gum Slough, as shown on a copy of an official plat and survey of fractional Township 17, Range 7, east, in Dunklin County, approved by the Surveyor-General and filed in the office of the county clerk in 1849. This slough is on the east side of Gum Island, and connects with the St. Francis River at the north and south ends of the island, the river being the west boundary of the island, which is about a mile and a quarter long and contains about 400 acres. The plat shows that the island and the land lying east of the slough were surveyed and subdivided, but the lines end at the margin of the slough. The evidence shows that the surveyors did not survey the land covered by the slough, for the reason that the water was too deep to permit of a survey. It appears from defendant's evidence that at the time of the survey and for many years thereafter Gum Slough was navigable for much of the time every year by boats of two *Page 572 or three feet draft. In time, however, by deposits of leaves and sediment, the slough gradually filled, so that for some years before this suit was brought, which was in June, 1919, it became dry land in ordinary seasons. Plaintiff's evidence tends to show that the drying up of the slough was caused by a levee and ditch constructed along its east side many years before this suit was brought.
It is conceded that Gum Island and the land lying east of the slough were swamp or overflowed lands, and that the area covered by Gum Slough was never selected or designated by the Secretary of the Interior as swamp land. Plaintiff read in evidence a swamp-land patent from the State of Missouri to Dunklin County, executed pursuant to the Act of March 10, 1869, relating to swamp and overflowed lands, granted and patented to the State of Missouri by an act of Congress approved September 28, 1850, and reciting that the tracts thereinafter described have been patented as swamp and overflowed land by the United States to the State of Missouri, and situate in Dunklin County, to-wit: Here are described a large number of tracts, including the whole of fractional Township 17, Range 7 east, containing in all, 7522.06 acres, according to the official plats of survey of said lands returned to the General Land Office by the Surveyor-General.
In the year 1906, the County Court of Dunklin County ordered the land in Indian Hill and Gum Slough, "which lands had not been surveyed," to be surveyed and platted. A survey and plat were accordingly made and approved by the court as showing "an area of land in excess of that shown on the Government plat book heretofore used in the office of the clerk of this court, which excess has been formed by the recession and abandonment of the waters of what is known as Indian Hill and Gum Sloughs." Thereafter the county court ordered this area, including the tracts in controversy, to be sold as swamp lands. This was accordingly done, *Page 573 and a deed was made by the County of Dunklin to the plaintiff. Plaintiff and those under whom it derives title have paid taxes on the land for ten years before this suit was commenced.
It is admitted that the defendant owns Gum Island. He claims title to the land in controversy by the right of accretion.
The case was tried to the court without a jury. After the evidence was in, by stipulation the cause was transferred to Cape Girardeau County where it was finally submitted. No declarations were asked or given.
The court found and decreed that the plaintiff has no right, title or interest in the land claimed in the petition, and that it had no authority to pass upon the title set up and claimed by the defendant, for the reason that parties necessary to determine such title were not before the court in this action. It is stated in appellant's brief that the learned trial court suggested that if the title were anywhere it was in the United States.
The only assignment of error is that the court erred in failing to find the title to the lands in controversy to be vested in the appellant. The contention is that the land being swamp and overflowed land, the title passed to the State by virtue of the Act of September 28, 1850.
In Hannibal St. Jos. Railroad Co. v. Smith, 41 Mo. 310, in an action of ejectment, it was held that the defendant might prove by parol evidence as a defense that the land sued for was swamp and overflowed land, made thereby unfit for cultivation, so as to bring such land within the terms of the grant or reservation made by the Act (of Congress) of September 28, 1850 (9 U.S. Stat. 519), although the lists and plats to be made by the Secretary of the Interior, provided for in the act, had not been made and transmitted to the Governor, and no patent had been issued. In other words, the Act of Congress constituted a present grant, vesting an absolute title proprio vigore in the State of Missouri to such lands within her limits without issue of patent. [See Clarkson *Page 574 v. Buchanan, 53 Mo. 563, 569.] This ruling was affirmed on writ of error in Han. St. Jos. Railroad Co. v. Smith, 9 Wall. 95. These cases were not followed, however, in Palmer v. Boorn,80 Mo. 99, where we held:
"In the absence of evidence that the Secretary of the Interior has neglected or refused to decide whether a tract of land, in controversy in an action of ejectment, is swamp or overflowed land, or not, within the Act of Congress of September 28, 1850, the defendant will not be permitted to show, by parol evidence, that it falls within that act, for the purpose of defeating a title held under the railroad land grant of Congress of June 10, 1852."
The patent from the United States to the State of Missouri was not offered in evidence, the appellant relying on the Act of Congress as a grant in praesenti.
We think it clear that title to the unsurveyed area of Gum Slough did not vest in the State of Missouri by the Congressional grant, it not having been listed and selected as swamp land conformably to the terms of the second section of the act. We are also of the opinion that the patent from the State to Dunklin County conveyed only the surveyed areas as shown by the official survey and plat which are incorporated by reference. In Chapman Dewey Lumber Co. v. St. Francis Levee District, 232 U.S. 186, 34 Sup. Ct. Rep. 297 (quoting syllabi 1 and 2 from the latter volume), Mr. Justice VANDEVENTER said:
"1. The unsurveyed area within the exterior lines of a township, designated upon the official plat as a meandered body of water called `Sunk Lands,' was not conveyed to the State of Arkansas by a patent from the United States, issued under the Swamp Land Act of September 28, 1850 (9 Stat. at L. 519, chap. 84), which described the land surveyed as the whole of the township, containing a specified number of acres (which corresponded to the total acreage of the surveyed areas), according to the official survey, although at the time of the survey and the date of the Swamp Land Act such unsurveyed *Page 575 area was in fact not a lake or permanent body of water, but was only temporarily overflowed, and was not distinctly lower or materially different from the adjoining lands.
"2. The states acquired only an inchoate title under the Swamp Land Act of September 28, 1850, to lands which were never listed as swamp lands, although they may have been such in fact."
See also Little v. Williams, 231 U.S. 335, 34 Sup. Ct. Rep. 68.
The judgment is affirmed. All concur.