Whitaker v. McBride, 197 U.S. 510 (1905)
Whitaker v. McBride
No. 135
Submitted January 18, 1905
Decided April 10, 1905
197 U.S. 510
ERROR TO THE SUPREME COURT
OF THE STATE OF NEBRASKA
Syllabus
The question of the title of a riparian owner is one of local law, and unrestricted grants of the government, bounded on streams and other waters, are to be construed according to the law of the state in which the lands lie. Hardin v. Jordan, 140 U.S. 371.
Government surveys of public lands are not open to collateral attack in an action at law between private parties.
A meander line is not a line of boundary, but a means of ascertaining the quantity of land in the fraction which is to be paid for by the purchaser.
Where the government has surveyed and patented the lands up to the bank of a channel in which an unsurveyed island is situated, a patentee of the land on such bank, although his land may itself be an island surrounded by two channels of the river, has all the rights of a riparian owner in the channel lying opposite his banks, including the unsurveyed island, if, as a riparian owner, he is entitled thereto by the laws of the state.
By the law of Nebraska, as interpreted by its highest court, riparian proprietors own the bed of a stream to the center of the channel. The government, as original proprietor, has the right to survey and sell any lands, including islands in a river or any other body of water, and if it omits to survey an island in a stream and refuses to do so when its attention is called to tho matter, no citizen can overrule the department, and assuming that the island should be surveyed, occupy it for homestead or preemption entry. In such a case, the rights of riparian owners are to be preferred to those of the settler.
This was an action commenced on June 27, 1898, in the District Court of Buffalo County, Nebraska, and terminated by a decision of the supreme court of the state. 65 Neb. 137. The facts found by the district court are that McBride and Kingore were respectively the owners and in possession of tracts of land bordering on the Platte River, one on the north and the other on the south side thereof. Between these two tracts, and in the main channel of the Platte River, is an island, containing about 22 acres. This island had been in the possession of McBride and Kingore for more than ten years prior to the bringing of the action, but during that time they were contending as to how much of the land each was entitled to. It had never been surveyed by the government.
It appeared in evidence that Whitaker, in 1897, settled on the island, claiming the right to enter the same as a homestead; that application to the Land Department of the government to have the island surveyed was, in 1897, refused, the Department declining to take any action in the matter. These lands were a part of the Fort Kearney Military Reservation, which was surveyed and sold under a special Act of Congress dated July 21, 1876, 19 Stat. 94, the patent to McBride, who had entered his tract as a homestead, bearing date March 28, 1885. There was testimony tending to show that the island was, at the time of the survey of the reservation, frequently covered with water, and that, since then -- perhaps owing to the construction of bridges and dykes -- overflows had been less frequent and the land better adapted to occupation and cultivation. The decree directed by the supreme court was adverse to Whitaker, and quieted the title to McBride and Kingore to the island, giving to each one-half.