On Petition for a Rehearing.
Howard, J.With their petition for a rehearing of this case, counsel for appellee have filed a very earnest and able brief, to which reply has been made by counsel for appellants. Other briefs have also been filed on both sides.
Appellee’s principal contention now is, that “the court erred in holding that the swamp land in controversy had been surveyed either by the government of the United States or by the State of Indiana, at the time of the sale of such border lots” by the State.
It seems to us that this is dangerous ground for appellee to stand upon.
We think it was shown in the original opinion that the lands in question were surveyed by the United States government in 1834. The several sections were surveyed and numbered by the deputy surveyors, and this is all that is required by law to be done in the field. The remaining work may be done in the office.
By the third clause of section 2395, R. S. of the United States, it is provided that: “The township shall be subdivided into sections, containing, as nearly as may be, six hundred and forty acres each, by running through' the *215'same, each way, parallel lines at the end of every two miles; and by making a corner on each of such lines, at the end of every mile. The sections shall be numbered respectively, beginning with the number one in the northeast section and proceeding west and east alternately through the township with progressive numbers till the thirty-six be completed.”
For cases where boundary lines and corners have not been, or could not be, actually run or fixed, provision is made in clause second of section 2396, of the same statutes, as follows:
‘ ‘The boundary lines, actually run and marked in the surveys returned by the surveyor-general, shall be established as the proper boundary lines of the sections, or subdivisions, 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 lines which have not been actually run and marked shall be ascertained, by running straight lines from the 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 lines shall be ascertained by running from the established corners due north and south or east and west lines, as the case may be, to the watercourse, Indian boundary line, or other external boundary of such fractional township.”
In connection with these statutes, it is said, in Matthews’ Guide to the Public Lands, p. 114, that: “The sections of one mile square are the smallest tracts, the outboundaries of which the law requires to be actually surveyed. Their minor subdivisions, represented in lines drawn on the township plats, are not surveyed and marked in the field. They are defined by law, and the surveyors-general, in protracting township plats from *216the field notes of sections, merely designate them in red ink, the lines being imaginary, connecting opposite quarter-section corners in each section from south to north, and from east to west. * * * This convenient mode of subdividing sections with a view to economy and to facilitate sales of small tracts-, although not actually marked on the ground by metes and bounds, yet under laws of Congress are susceptible of demarkation by any surveyor in the different States and territories in accordance with the field notes of the original survey made by the United States officers.”
To make a legal survey in this case, therefore, it was only necessary to actually run the section lines every two miles, to mark a corner on each of such lines at the end every mile, and to number the several sections. Even of more than this was actually done by the surveyors in the field. The law then provides a means for ascertaining “boundary lines which have not been actually run and marked,” namely, “by running straight lines [on the plats in the land office] from the established corners to the opposite corresponding corners.” With these provisions of the law, with the two-mile parallel lines actually run, and the eighty chain, or mile, corner points marked on each line, any surveyor, using the original field-notes, could have no trouble in locating the several lines, corners and subdivisions. The land in controversy was therefore surveyed into sections, as provided by law, by the United States government surveyors, in 1834.
But even if we were mistaken in this, it would, as we have said, be a dangerous contention for appellee to undertake to show that such survey was not made.
The swamp land act of 1850, under which the State claims title, requires that the lands should be selected, and the selections approved by the Secretary of the In*217terior, as swamp lands. The land in dispute consists of parts of surveyed sections of land, selected, approved, and certified from the general land office of the United States. The land so selected is described as in “Township No. 36, Range 8, west,” and being “All of * * * [sections] 12, 15, 17, 18, 19 and 20. All of 21 and 22, [and] N. W. M 23.”
But if there were in'fact no survey, then no such sections would exist, at least between the meanders of the Calumet river, and so no selections would ever have been made by the State or approved by the Secretary of the Interior. The consequence would be that the State had never received title, and the unsurveyed lands having-remained in possession of the general Government, were correctly surveyed and sold under the act of Congress of 1870. If, therefore, we should admit this main contention of counsel for appellee, the consequence would inevitably follow that the State had never acquired title to the land in dispute. We are satisfied, however, that the conclusions reached in the original opinion, that the lands were surveyed in 1834; that they were selected and the selections approved under the swamp land act of 1850; that the State, therefore, acquired good title under that act; and that the act of 1870, with the resurvey and sales thereunder was a nullity, are all correct; and we are quite unable to understand why counsel should here insist upon a contention which, if agreed to, would cut the ground entirely from under their own feet.
The other principal contention of counsel for appellee in this petition is that the meanders of the Calumet river are boundaries of the marginal lots in the several sections as sold by the State. This can not be admitted. It is contrary to all the authorities. Meanders are not boundary lines unless expressly made so in the instruments of conveyance.
*218In the present case had the marginal lots along either side of the river been sold without reference to the sections, the purchasers would most certainly have taken title, not to the meander simply, but to the thread of the stream. This, too, is according to the practice and instructions of the land department, to which counsel refer so confidently.
Secretary of the Interior Vilas, February 27, 1888, on the petition of James Hemphill for the survey of a point of land, or island, extending beyond the meander line into Goose Lake, in Michigan, held, quoting from Railroad Co. v. Schurmeir, supra (286), that "Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers [and as well upon inland lakes of water] , not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as a means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser”; and hence that the application for a survey of the point of land beyond the meander should be denied; that is, in effect, that the title to the point of land in question was in the owner of the adjacent land within the meander line. See, also, decision of the commissioner of the general land office of November 28, 1884; and decision of Secretary Teller, July 11, 1883.
In the latter, an Indiana case, it is said: "The grants made by the Government of the lands lying on the lake are not limited by the meander line, but extend at least to the permanent waters of the lake.”
In the case of Railroad Co. v. Schurmeir, supra, it is said further by the Supreme Court of the United States, that "In preparing the official plat from the field notes, the meander line is represented as the border line of the stream, and shows, to a demonstration, that the water*219course, and not the meander line, as actually run on the land, is the boundary. Proprietors, bordering on streams not navigable, unless restricted by the terms of their grant, hold to the center of the stream.”
The Schurmeir Case has been the leading authority on this subject since the delivery of the opinion of the court.
In the case of Forsyth v. Smale, 7 Biss. 201, Judge Drummond, citing Railroad Co. v. Schurmeir, supra, stated the rule in like manner as to meander lines, holding that, “in relation to streams not navigable, the law has always been that the purchaser takes the land to the center of the stream”; and that “where land is purchased bordering upon a nonnavigable stream, and the line is meandered upon the stream for the purpose of quantity, and the stream is intended as the boundary of the land, the grant includes any land between the meandered line and the water.” See, further, Gould on Waters, section 78, and notes; Angell on Watercourses, section 10, and following sections and notes.
In Jones v. Janney, 8 W. & S. (Pa.) 436, 42 Am. Dec. 309, it was held that a “conveyance of lands bordering on flats of river „ passes the flats as appurtenances, unless they are expressly excluded.” See, also, Ashby v. Eastern R. R. Co., 5 Met. (Mass.) 368, 38 Am. Dec. 426.
In Felder v. Bonnett, 2 McMull. Law (S. C.) 44, 37 Am. Dec. 545, the court held that a survey calling for boundary designated as “Dean Swamp,” includes land to flowing stream or current of swamp where such exists, and does not extend merely to external line of low and marshy ground.
In Kraut v. Crawford, 18 Iowa 549, 87 Am. Dec. 414, the court held that a meander line is not a boundary line. Citing Middleton v. Pritchard, 3 Scam. 510, 38 Am. Dec. 112, “where it was decided that the riparian *220proprietor owned the low ground or peninsula outside of the meander line.”
Even, therefore, if the land had not been fully surveyed, and the section lines and corners were not all determined, as urged by counsel for appellee; and even if the survey terminated on the banks or edge of the morass on each side of the river, still the parties purchasing the lots abutting upon this morass, or the meander line, would take to the middle or thread of the stream. Nor can reservations be implied, in case of conveyances of lands along streams. "When, therefore, the government has surveyed its lands along the bank of a stream, and has sold and conveyed such lands by governmental subdivisions, its patent conveys the title to all islands lying between the meander line and the [middle thread of the river, unless previous to such patent it has surveyed such islands as governmental subdivisions, or expressly reserved them when not surveyed.” Butler v. Grand Rapids, etc., R. R. Co., 85 Mich. 246, 24 Am. St. Rep. 84, and cases there cited.
Nor will it do, especially in view of the foregoing authorities, for counsel to say that the meanders in the case before us are not meanders of the river. The field notes show that the whole territory between the meander lines was covered with water; while the evidence shows that it is still so covered. The river, so called, was the central or flowing part of this body of water. Meander lines, from their very nature, being intended to mark the sinuosities of a stream, are run as close to the water as can conveniently be done by the surveyors. In this case, as the field notes show, the meanders could not be run any closer to the river than they were actually run. In addition to this, the field notes actually name the lines as meanders of the river, the language used being: "Meanders of Galumic River.”
*221The meander is, therefore, merely a mark for the line of the river, being laid off as near to the river bank as the surveyors could work. It means the river, and is not itself a boundary, but only indicates the location of the true boundary, which is the river itself. If, therefore, we proceeded on the theory of the appellee, we should still have to hold that the lands in controversy belonged to the owners of the border-lots on each side of the river.
But, as in fact, the contention of the appellee that the land was not surveyed is not true, but the whole tract was surveyed into sections of land, and the border-lots sold as lots of those sections, we held in the original opinion, and still hold, that the title of the purchasers of these border-lots extended to the opposite lines of the sections. There was nothing else to limit them, the stream itself being included in the lines of the survey.
We may here remark that so far as concerns the marginal lots, the Beaver Lake cases (State v. Portsmouth Savings Bank, 106 Ind. 435, and State v. Milk, 11 Biss. 197) are not in point, Beaver Lake was a large body of water of shallow depth, which had not been surveyed by the United States government. Indeed, the cases themselves are authorities for the conclusions here reached. In the State v. Milk, supra, it is said: “That while a general grant of land on a river or stream, nonnavigable, extends the line of the grantee to the middle or thread of the current, a grant to a natural pond or lake, extends only to the water’s edge,” citing numerous authorities.
Counsel dwell also on the equities of the case, the superior rights of the State, the absence of any title in the Tolleston Club, as shown by the record, that the State and the purchasers of the border-lots have treated the conveyances by the State as covering but such bor*222der-lots, and that the statute of limitations has already-run against the border-lot owners. The record is silent on all these matters; and the rights of all parties, even those of the august commonwealth, must be determined from the record alone. We have nothing else to guide us. The decision of the court does not affect any rights which the State or the border-lot owners may have in relation to any of these matters. So far as any rights which the State or border-lot owners may have as to the manner in which the State and the border-lot owners have treated the sales made by the State, such questions,, if properly presented, may be considered on the return of the case to the trial court.
Filed April 26, 1895.The appellants Flora N. Biggs and John G. Earl ask that the original opinion be modified so as to give them title to the lands claimed by them. In so far as these appellants claim title through purchase from the United States or from the State of Indiana of lots or lands along the margin of the Calumet river, according to the United States survey of 1834, together with the parts of the land in controversy, lying within their east and west lines, and extending, in case of “lots” to the opposite sides of their respective sections, and, in case of other subdivisions, to the opposite sides of such subdivisions, — such claims of title are upheld by the original opinion. In so far, however, if at all, as their claims are based upon the void survey of 1870, and conveyances thereunder, the claims can not be upheld, unless protected by the statute of limitations.
The petition for a rehearing is overruled.