ERROR to the Supreme Court of Minnesota.
Schurmeir filed a bill in one of the inferior courts of Minnesota, to enjoin the St. Paul and Pacific Railroad Company from taking possession, and building its railroad upon, certain ground in the city of St. Paul, Minnesota, bordering on the Mississippi, and originally a fractional section of the public lands. The place was alleged, by Schurmeir, to be a public street and landing.
The railroad company justified their entry, as owner, in fee of the locus in quo. The issues between the parties were tried by a referee, who found both facts and law in favor of Schurmeir. The facts, so found, being undisputed, the case was removed, for decision on them, to the Supreme Court of the State. That court affirming the referee's judgment, the case was here for review.
The case-to understand which well, it is necessary to refer, in a preliminary way, to certain statutes of the United States governing the surveys and descriptions of public lands-was thus:
Certain statutes enact, that the public lands shall be subdivided into townships, sections, and quarter sections, and that these subdivisions shall be bounded by north and south and east and west lines, unless where this is rendered impracticable by meeting a navigable water-course, &c. The boundaries, and contents of the several sections and quarter sections, are to be ascertained in conformity to the following principles: 'The boundary line actually run, and marked in the surveys returned, 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 shall not have been actually run and marked as aforesaid, 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 said 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 water-course, . . . or other external boundary of such fractional township.'
There is apparently no law which requires what is hereafter spoken of, and called the 'meandering' of water-courses; but the acts of Congress, above referred to, do require the contents of each subdivision to be returned to, and a plat of the land surveyed, to be made by the surveyor-general; and this makes necessary an accurate survey of the meanderings of the water-course, where a water-course is the external boundary; the line showing the place of the water-course, and its sinuosities, courses, and distances, is called the 'meander-line.'
The original act of 17th May, 1796, providing for the sale of these lands, enacts, 'that all navigable rivers within the territory to be disposed of, shall be deemed to be, and remain public highways; and in all cases where the opposite banks of any stream, not navigable, shall belong to different persons, the stream and the bed thereof shall be common to both.'
The premises on which the railroad company sought to enter, were situated upon a fractional section, duly surveyed by the government surveyor, in October, 1847; the survey duly approved in March, 1848, and returned to the General Land Office. This fractional section was designated by this survey as lot 1, in section 5, township 28, north of range 22, west of the fourth principal meridian. It was represented by the plat thereof, as bounded on the north by the east and west sectional line, on the west by the north and south sectional line, and on the only other remaining side by the Mississippi River. It was this river that interposed and made this section a fractional one.
At the time of the survey, there was a parcel of land (called by the counsel on one side, a sand-bar, reef, or 'tow-head,' and by the counsel on the other, an island) lying along the shore of the river, about four feet lower than the main land of the fraction, and with a channel or slough between it and the main land. This depression was about 28 feet wide, and the bar or island, in its extreme width, was about 90 feet. Its extreme length was about 160 feet. The main body contained 9.28 acres; this parcel, 2.78 acres.