Mr. CUMMINS, from the Committee on the Judiciary, submitted the

following

REPORT.

[To accompany S. 1174.]

The Judiciary Committee of the Senate, having had under consideration Senate bill 1174, reports the bill without amendment, with the recommendation that it pass.

The committee submits a brief history of the matter, together with a reference to the authorities involved in the inquiry.

I.

In northwestern Iowa there is considerable low, level ground. There are, in this part of the State, many shallow ponds or lakes of no value as bodies of water, but which were meandered when the Government survey was made and which were not included in the patents which from time to time were issued for the bordering lands. There are a number of navigable lakes in the State, but this inquiry does not touch them.

II.

As the State has developed, the soil cultivated, and a system of drainage established, these nonnavigable ponds or lakes have gradually either disappeared or fallen away until they are mere swamps or mudholes with comparatively little clear water in them. Most of them have become unsightly and insanitary, and it is a wise policy to drain them so that their beds will become useful through cultivation.

III.

To the end that this waste land within such meander lines might be used for agriculture, and believing that the title was in the State, the legislature passed an act providing for the determination of the question as to the desirability of continuing such nonnavigable ponds

or lakes as bodies of water, and for survey, drainage, and sale, if it was found advisable to turn them into agricultural lands.

In the course of the administration of this law the question of the ownership of the beds of these ponds or lakes has arisen and has assumed the following phases:

First. Some people have insisted that the grantees of the land surrounding the lakes own to the center, in accordance with the doctrine applicable at the common law and in some States to nonnavigable

streams.

The Supreme Court of Iowa, and, following its decision, the Supreme Court of the United States have held against this contention. (State of Iowa v. Jones & Marshall Dental Mfg. Co., 143 Iowa, 398; Marshall Dental Mfg. Co. v. State of Iowa, 226 U.S., 460; Barney v. Keokuk, 94 U. S., 324; Hardin v. Shedd, 190 U. S., 508.)

Second. Others have argued that the title is still in the United States.

Third. Still others have claimed that the title is in the State of Iowa.

While the Supreme Court of Iowa and the Supreme Court of the United States had an opportunity, in the cases cited, to decide the point last stated, it has not been ruled upon. While no real doubt is entertained respecting the title of the State, the uncertainty which many people in Iowa seem to feel has practically brought the execution of the statute to which reference is made to a standstill-a most unfortunate situation for the general welfare of the State.

IV.

In these circumstances there was introduced in a former Congress a bill to remove the doubt concerning the title and settle the question of ownership as between the Nation and the State by granting to the State whatever title the United States now has to the beds of such nonnavigable ponds or lakes, preserving in terms what would be preserved even in the absence of express provision-the rights, if any, of bordering grantee proprietors.

The bill was not reported, and in this Congress it has been again introduced.

V.

As was proper and customary, the former bill (identical with the one now before the committee) was referred to the Secretary of the Interior for his views. His reponse was in the form of a letter, a copy of which is attached hereto, and is made the basis of the discussion of the subject involved.

VI.

By reference to the letter of the Secretary of the Interior, Mr. Lane, it will be observed that he sees no objection to the proposal upon what may be termed its merits. He is of the opinion, however, that the Government has no interest in the matter because it is his understanding of the law that the patents which granted the lands outside the meander lines conveyed to the grantees the pond or lake beds, under the rule which in some places governs riparian

rights along nonnavigable streams, and that inasmuch as legislation, at this time, neither could nor should disturb the rights of these grantees, the act if passed would be not only futile but vexatious. To support his conclusion he cites: Mitchell v. Smale, 140 U. S., 406-414; Horn v. Smith, 159 U. S., 40-43; Hardin v. Jordan, 140 Ú. S., 371.

VII.

With the utmost respect for the Secretary's legal advisers we venture to say that they have wholly failed to grasp the subject and totally misconceived the cases noted in the letter.

It has been ruled in scores of authorities, and among the authorities there is no conflict, that when the United States as a proprietor of land within a State conveys land bordering upon a stream or body of water, whether navigable or nonnavigable (we do not include tidewaters or the Great Lakes), the question of riparian rights—that is, whether the grantee of the bordering land takes any part of the land covered by water-is to be determined solely by the law of the State in which the property is situated. (Barney v. Keokuk, 94 U. S. 324; St. Louis v. Myers, 113 U. S. 566; Packer v. Bird, 137 U. S. 661; Hardin v. Jordan, 140 U. S. 371; Shively v. Bowlby, 152 U.S. 1; R. R. Co. v. Butler, 159 U. S. 90; Power Co. v. St. Paul Water Coms., 168 U. S. 349; Hardin v. Shedd, 190 U. S. 508.)

Undoubtedly, according to the common law, a meander line intended to mark the edge of a stream or body of water (beyond the tides) is not a boundary line, and the adjacent landowner takes to the thread of the stream or center of the water; and this is true without regard to the character of the stream or body of water, for at the common law only waters in which the tide ebbs and flows are navigable waters.

Upon this subject, however, the common law has no general application throughout the United States. It has been modified either by legislation or judicial decision in so many States that when the law of a particular State becomes material we must look to the statutes or the judicial authorities in that State in order to be informed.

The legal advisers of the Secretary of the Interior wholly neglected to observe this phase of the somewhat complicated subject. It is strange that they did not notice it, because the principal case which they bring to their support discusses it very fully, for in fact the decision turns upon the inquiry as to whether the common law prevailed in Illinois. We will refer to this case again after we have examined the two first cases cited, namely, Mitchell v. Smale (140 U. S., 406) and Horn v. Smith (159 U. S., 40). The former opinion immediately follows, and is a mere reiteration of Hardin v. Jordan. The latter does nothing more than to affirm the well known rule that, generally speaking, a meander line is not a line of boundary, but that the riparian owner takes to the water's edge.

This brings us to Hardin v. Jordan (140 U. S., 371). The case arose in Illinois and related to the bed of a lake which upon the Government survey was marked navigable, but which the court found to be nonnavigable. The Government had granted by patent the adjacent land, and the question was whether the owners of certain fractional quarter sections bordering on the lake took to the center

of the lake or only to the water's edge. The real discussion begins on page 384, from which we make the following quotation:

We do not think it necessary to discuss this point further. In our judgment the grants of the Government for lands bounded on streams and other waters without any reservation or restriction of terms are to be construed as to their effect according to the law of the State in which the lands lie.

The next question for consideration, therefore, is, What is the law of Illinois with regard to such grants? If it were not for the decision of the Supreme Court of that State in the case of Trustees of Schools v. Schroll (120 Ill., 509), we should not have the slightest hesitation on the subject. And we can not divest ourselves of the impression that the opinion of the court in that case on the subject in hand is anomalous, and opposed to the entire course of previous decisions in the State. It is our judgment that the law of Illinois in this regard is the common law, and nothing else, and that the opinion of the court in Trustees, etc., v. Schroll is not in accordance with the common law.

Mr. Justice Bradley, who delivered the opinion of the Supreme Court, then proceeds at great length to show what the common law is, and concludes by finding that under the law of Illinois the riparian owner took to the center of the lake. It will not be forgotten, however, that the opinion clearly shows-indeed emphatically insists— that it is the law of Illinois which governed the matter. If the question had never again been brought to the attention of the Supreme Court the distinction we have pointed out would entirely remove the case as an authority upon the same question arising in Iowa. But it so happened that two years later the identical question appeared again in the Supreme Court from Illinois. It arose in Hardin v. Shedd (190 U. S., 508), and, curiously enough, it involved the same lake. The case came up on writ of error to the Supreme Court of Illinois. Justice Holmes rendered the opinion. On page 519 he says:

The law of Illinois has been settled since Hardin v. Jordan (140 U. S., 371), and it now is clear, by the decision in this case and later, that conveyances of the upland do not carry adjoining land below the water line. (Citing several Illinois decisions.) Following these decisions, we must hold that the title set up by the plaintiffs in error fails.

The effect of the ruling was to reverse Hardin v. Jordan solely on the ground that under the settled law of Illinois the bordering owner of a nonnavigable lake took only to the water's edge.

It is therefore clear that the Secretary of the Interior did not make the material inquiry, which is: What is the law of Iowa upon the subject? And to that we invite attention briefly, and only briefly, because there never has been any doubt in Iowa concerning the question we are discussing. It is unnecessary to go further than to examine the case of State v. Jones (143 Iowa, 398), already cited, for it sums up a long-established doctrine in that State. We quote from page 402:

The law is settled in this State that the owner of land bordering on a non-navigable body of water meandered by Government surveyors, has title to the water's edge and not to the center of the lake as is held in some States. (Citing decisions.)

It may be remarked in passing that Iowa was one of the States to declare very early in its history that inland streams which were above tidewater and which were navigable in fact were governed by the general rule applicable to tidewater, and its courts held that the ownership of riparian proprietors extended only to high-water mark. This ruling came before the Supreme Court of the United States in Barney v. Keokuk (94 U. S., 324), and was sustained with a very

flattering reference to the leading case in Iowa, McManus v. Carmichael (3 Iowa, 1).

What we have said completely disposes of the view expressed by the Secretary of the Interior. It is impossible under the decisions to assert that the Government grantees of the lands surrounding these nonnavigable ponds or lakes in Iowa have any interest whatever in the property sought to be conveyed by the bill under consideration to the State of Iowa. It is as certain as any conclusion of mathematics that these ponds or lake beds belong either to the United States or to the State of Iowa.

We are of the opinion that they belong to the State and passed under the act admitting the State to the Union. It is conceded in all the authorities that the navigable lakes and lake beds so passed, and we need not argue the matter at all. In order to eliminate a factor which has perplexed some students of the subject we may remark that it has been claimed that these ponds or lakes were granted by the United States to the States under what is known as the swamp act of September 28, 1850. We have never been impressed with this argument, and it seems to have been negatived, inferentially at least, in the decision of the Supreme Court of Iowa, in State v. Jones, supra, and in the review of that case by the Supreme Court of the United States in Marshall Dental Co. v. Ìowa (226 U. S., 460). We will not pursue the inquiry further.

In our judgment the United States divested itself of all title or interest in the nonnavigable ponds or lakes by the act admitting the State to the Union, thus permitting the State to assume all the powers and attributes of a sovereign Commonwealth under the Constitution. If once the authority over navigation is excluded, it is impossible to find any basis of either ownership or supervision over a nonnavigable pond or lake within the borders of a State.

There are two suggestions which at this point should be borne in mind:

First. We are not questioning the right of the Federal Government to correct a mistake in its original survey of the public lands.

Second. We are not attempting to decide whether the ownership or sovereignty of the State of Iowa is of a character that will permit the drainage of the ponds and a sale of the pond beds. The latter is a question which must be determined in the courts of Iowa and with which the Government of the United States has no concern.

It is not necessary to enter a lengthy discussion to sustain our view of the status of these ponds or lakes, for however convincingly we might reason, the fact remains that that view is disputed by many who are called upon to pass on titles in Iowa; and however unfounded their doubt may be, the uncertainty exists, and the purpose of the bill is to remove it.

In State v. Jones, supra, the defendant claimed title under the swamp-land act, and had made application to the Secretary of the Interior for a resurvey of Goose Lake. The Secretary refused the application, and in the course of his opinion observed:

The title to the beds of all lakes that were properly meandered rests in the State by virtue of its sovereignty, and no reason can be perceived why the State can not assume control of this land and reclaim it by drainage or make any other disposition it may see proper in view of this decision, holding that the lake bed is not public land left unsurveyed.

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