This controversy is between two claimants to land, one holding a patent therefor from the United States and the other claiming it by virtue of its contiguity of other land for which a United States patent was held. A statement of facts was agreed upon by the parties, and that statement, with some slight additional testimony, formed the basis of a decree in the circuit court in favor of the plaintiff, which was affirmed by the court of appeals (54 U.S. App. 668, 85 Fed. Rep. 45, 29 C. C. A. 5), to review which last decision this appeal was taken.
The facts are these: In the years 1834 and 1835 Ambrose Rice, a deputy surveyor, surveyed and subdivided into sections and quarter sections fractional township 9 south, in range 9 east, and townships 9 and 10 south, in range 10 east, the same being situated in the northern part of Ohio and adjacent to Lake Erie. From his field notes, duly certified to the surveyor general of that land district, the latter prepared a correct plat of the townships, showing the subdivisions thereof, and marking all the actual survey lines and the corners designated by said survey. By the field notes and plat certain sections appear to be fractional, the line on the north being meandered in a general direction from the northwest to the southeast. The tract to the north of this line was described as 'flag marsh' and 'impassable marsh and water.' Paragraphs 4, 5, and 6 of said agreed statement of facts are as follows:
'4. Said plat showed the northerly line of the mainland portion of said survey, a line with its intersection of each township and section line evidenced by a post placed at such intersection, as the said line was actually surveyed and marked as shown by said certified field notes, beginning on the west line of section 19, in town 9 south, range 9 east, and thence running in a general easterly and southerly, but meandering and tortuous course to and across the south line of section 11, in town 10 south, range 10 east.
'5. The said plat showed the said line of said survey from the west line of said township to a point 2 chains easterly from its intersection of the line between sections 21 and 22 in town 9, range 9, to be the shore of Maumee bay; and from that point southerly and easterly the plat shows this line on the northerly and easterly sides of fractional sections 22, 27, 26, and 25 in town 9, range 9, sections 30, 31, and 32 in town 9, range 10, and sections 4, 9, 10, and 11 in town 10, range 10, to be the boundary of what is called the 'flag marsh' and 'impassable marsh and water.'
'6. As shown in and upon said original plat, somewhat east of north from the point where this line of the survey crosses the north and south quarter line through section 22, town 9, range 9, and about a mile and a half from it, began an island called 'Cedar Island.' This extended northerly for more than half a mile, and then southeasterly to a point opposite the said line along the northerly side of section 25 in said township. A short distance southeast of this another island began and extended southeasterly beyond the north line of section 5, in town 10, range 10, projected easterly. Then there was a narrow inlet. A third island began on the easterly side of this inlet, and extended southeasterly almost to what would be the east line of section 11, town 10, range 10. Between these islands and the tortuous line above described was the space designated 'flag marsh' and 'impassable marsh and water.' No surveyed lines other than the township lines crossed either the intervening marsh or the islands. The northwestern island was named 'Cedar' and was the largest. The plat showed it as contained 53.83 acres, all in town 9, range 9. The one next east of it was marked as 'Sandy Island.' The plat showed that 7.52 acres of it were in town 9, range 9; 28.49 acres in town 9, range 10; and 1.18 acres in town 10, range 10. The southeastern island was marked as 'Crane Island,' containing 18.38 acres, all in town 10, range 10. From the northwest end of Cedar island to the southeast end of Crane island was about 9 1/2 miles. Norman strait separated Cedar and Sandy islands. Lily strait lay between Sandy and Crane, and Crane creek entered the lake at the east end of Crane island.