SENATE.

67TH CONGRESS,}

Session.

{

REPORT No. 335.

PROVIDING FOR SALE OF LANDS WITHIN TENDERFOOT LAKE, WIS.

DECEMBER 6, 1921.-Ordered to be printed.

Mr. LENROOT, from the Committee on Public Lands and Surveys, submitted the following

REPORT.

[To accompany S. 2468.]

The Committee on Public Lands and Surveys, to whom was referred the bill (S. 2468) providing for the sale and disposal of public lands within the area heretofore surveyed as Tenderfoot Lake, State of Wisconsin, having considered the same, report favorably thereon with the recommendation that the bill do pass without amendment.

The bill was referred to the Department of the Interior, and the Secretary of that department submitted the following report thereon: DEPARTMENT OF THE INTERIOR, Washington, October 24, 1921.

Hon. REED SMOOт,

Chairman Committee on Public Lands and Surveys,

United States Senate.

MY DEAR SENATOR: I am in receipt of your letter dated September 24, 1921, transmitting, among others, a copy of S. 2468, entitled "A bill providing for the sale and disposal of public lands within the area heretofore surveyed as Tenderfoot Lake, State of Wisconsin.'

It is provided in the bill that on the survey of any public lands found to exist within the area heretofore surveyed as Tenderfoot Lake, in sections 7, 8, 17, and 18, T. 43 N., R. 8 E., fourth principal meridian, Wisconsin, the owners of the adjacent lands shall have a preference right to purchase such lands so surveyed for a period of 60 days after the filing of the official plats of such survey, at $1.25 per acre: Provided, That such privilege shall not extend to any lands so surveyed inuring to the State of Wisconsin under the act of September 28, 1850 (9 Stat., 519): Provided further, That ''nothing herein contained" shall have the effect of defeating the rights of any other person or persons which may have attached to such lands or any part thereof.

Section 2 of the bill authorizes the Secretary of the Interior to make all necessary rules and regulations to carry the act into effect.

In reply I have the honor to state that said Senate bill No. 2468 is identical with

H. R. 10023, introduced in the Sixty-fifth Congress, second session, a report on which was made in detail in letter from this department, dated April 1, 1918 (copy herewith),

addressed to Hon. Scott Ferris, chairman Committee on Public Lands, House of Representatives, of the conditions found up to that time, and it was stated that this department had no objection to the passage of H. R. 10023 and it was recommended that its provisions be enacted into a law. I also invite attention to a copy of letter dated June 21, 1918, addressed to Hon. John C. Raker, House of Representatives, in regard to the matter herewith transmitted.

I am advised by the Commissioner of the General Land Office that in his letter "E," dated April 23, 1918, to this department, the papers relative to the application of Mr. Reinhardt Rahr, of Manitowoc, Wis., for the survey of the unsurveyed land within the area of the lake in sections 7, 8, 17, and 18, T. 43 N., R. 8 E., fourth principal meridian, Wisconsin, alleged to have been omitted from the original survey of the township, were transmitted.

In view of the evidence presented, it was stated in said letter of April 23, 1918, from the commissioner, as follows:

"I therefore recommend that the supervisor of surveys be directed to prepare special instructions in favor of a United States surveyor and transmit them to this office for examination and approval providing for an investigation of the lands in the field; that it be provided in the special instructions that if the United States surveyor should find from the best obtainable evidence that any considerable quantity of lands were omitted from the regular township survey, according to the plat approved March 29, 1866, as alleged by Mr. Rahr, and were above ordinary high-water mark at that time and in 1848, when Wisconsin was admitted into the Union, that he be directed to survey the same and to report in his field notes the character and condition of the lands on September 28, 1850, when the swamp land grant was passed (9 Stat., 519), so that a proper plat may be constructed, showing by legal subdivisions the area of the lands and how much of them, if any, passed to the State under the swamp-land grant.

"On the other hand, I recommend that if the United States surveyor should find that no considerable quantity of the lands were omitted from the regular township survey or that those which may have existed were below ordinary high-water mark in 1848, when Wisconsin was admitted into the Union, that he be directed to execute no survey but to report his findings to this office.

"I further recommend that if any survey of the lands is contemplated that the United States surveyor be instructed to examine the county records for the purpose of ascertaining the names and addresses of the present owners, aside from Mr. Rahr, of the surveyed lands adjoining the lands to be surveyed. When this is done, that he be directed to notify all of the owners of the surveyed lands that he is upon the ground for the purpose of surveying said lands, also the proper State authorities at Madison, Wis., and to allow all of them 30 days within which to file any papers they may desire in this office tending to show cause, if any there be, why the lands should not be surveyed and disposed of as public lands of the United States; that the notices be served by registered mail and copies thereof be forwarded to this office, with the registry return receipts for the registered letters containing the notices, by the United States surveyor at the proper time, for consideration with his returns of the survey." These recommendations were approved by this department under date of May 3. 1918. Special instructions in favor of a United States surveyor providing for the examination and conditional survey of the land were duly issued, and they were approved by the commissioner.

The returns of the survey of the land have recently been received by the General Land Office, but have not yet been examined with a view to the acceptance of the survey.

In view of the foregoing this department has no objection to the passage of said Senate bill No. 2468, and I recommend that its provisions be enacted into law.

MY DEAR MR. FERRIS: I am in receipt of your letter dated March 4, 1918, transmitting for report a copy of H. R. 10023, entitled "A bill providing for the sale and disposal of public lands within the area heretofore surveyed as Tenderfoot Lake, State of Wisconsin.

It is provided in the bill that on the survey of any public lands found to exist within the area heretofore surveyed as Tenderfoot Lake, in sections 7, 8, 17, and 18, T. 43 N., R. 8 E., fourth principal meridian, Wisconsin, the owners of the adjacent lands shall have a preference right to purchase such lands so surveyed for a period of 60 days after the filing of the official plats of such survey at $1.25 per acre: Provided, That such privilege shall not extend to any lands so surveyed inuring to the State of Wisconsin under the act of September 28, 1850 (9 Stat., 519): Provided further, That "nothing herein contained" shall have the effect of defeating the rights of any other person or persons which may have attached to such lands or any part thereof.

Section 2 of the bill authorizes the Secretary of the Interior to make all necessary rules and regulations to carry the act into effect.

In reply, I have the honor to state that I am advised by the Commissioner of the General Land Office that the records show that Mr. Reinhardt Rahr, of Manitowoc, Wis., requested information relative to the lands in question in letters to his office and in person. He explained the situation and alleged that the original survey as per plat approved March 29, 1866, was erroneous, thereby leaving out about 300 acres which should have been included therein. He filed evidence showing that he had acquired title to and was the present owner of lots 1 to 7, inclusive, section 7; lot 2, section 18, adjoining the lake on the north and west sides; and in addition lot 3 of section 18 and islands Nos. 1 and 2 in the lake in sections 8 and 17, all containing, according to the plats on file, an aggregate area of 303.73 acres. The lands on the south and east sides of the lake in sections 8 and 17 were represented as owned by others, and part of the area of unsurveyed lands within the lake appears to adjoin these surveyed lands.

Mr. Rahr, in letter to the Commissioner of the General Land Office, dated March 19, 1917, stated that about 25 years ago he built a summer home on an island in the lake, which island was afterwards surveyed, and he acquired title thereto from the Government. In time, he stated, that in order to protect his interests he bought as much of the lots adjoining the shore of the lake as he could. He states that at the time he bought the lands in question he understood he was acquiring the lands adjoining the lake, but later found that the lands represented on the official plat as showing the lake did not do so, and that the plat did not correctly represent the situation on the ground. The official plat of the survey of T. 43 N., R. 8 E., fourth principal meridian, Wisconsin, approved March 29, 1866, shows no unsurveyed lands in the locality described, but according to the plat the lake purports to have been meandered and the surveys closed thereon. There is another plat on file approved December 23, 1908, of a survey executed by A. W. Barber, United States surveyor, in 1907, showing three surveyed islands in the lake, from which it appears that the plat of the original survey of the township, approved March 29, 1866, did not correctly represent the actual conditions upon the ground, as he found that there was unsurveyed land within 5 chains of the largest island surveyed by him.

The General Land Office prepared a diagram from the official plats on file showing the survey of the lands on and islands in the lake, in sections 7, 8, 17, and 18 of the township, and as there was nothing definite of record to show the extent of the unsurveyed lands, said diagram was forwarded to Mr. Rahr with letter from the Commissioner of the General Land Office dated December 3, 1917, with the request that he indicate thereon from any dependable maps or plats he might have just where the actual shore line of the lake existed upon the ground, so that some definite idea might be formed as to the extent of the unsurveyed lands in question.

With his letter, dated January 17, 1918, Mr. Rahr returned the diagram to the General Land Office upon which he caused to be superimposed in red lines shaded with blue, "the exact lines of Lake Tenderfoot" according to a private survey designated as "the Vaughn survey." He stated that while it might not be absolutely correct, it was very nearly so. A blue print copy of the diagram is herewith transmitted. Mr. Rahr also inclosed copies of deeds from the Menasha Wooden Ware Co. and the Yawkey-Bissell Lumber Co. to him for the lots bordering upon the lake as per plat approved March 29, 1866, above referred to.

From the showing made by Mr. Rahr and from what was disclosed by the Barber survey, it is believed that an investigation of the matter by this department is warranted. It is held that the land department has authority to examine into the correctness of the public surveys and to cause a resurvey to be made of any public lands that were erroneously or improperly omitted from survey when it is clearly shown that the lands were erroneously or improperly omitted and that no sufficient reason then existed for not extending the public surveys over them; but it has no authority to survey as public lands tracts which were at the date of the township survey properly indicated as covered by the waters of an apparently permanent lake. (32 L. D., 545.)

A similar case was presented to this department in the case of the applications of Benjamin F. Robinson and John Dows for the survey of certain unsurveyed lands

between the meander and shore lines of Swan Lake in section 22, T. 99 N., R. 32 W., fifth principal meridian, Iowa.

After investigation it was found that the lands had been erroneously omitted from the regular township survey. They were surveyed, but it appeared that Messrs. Robinson and Dows were not qualified to enter the land. A bill (H. R. 112286) was passed and became a law by the act of July 3, 1916 (39 Stat., 1322), which authorized the Secretary of the Interior to cause to be issued to them a patent for the lands, provided that within three months after the passage of the act they should present their application and make payment for the tracts at the rate of $1.25 per acre, with the further provision that nothing in the act should have the effect of defeating the right of any other person or persons which might have attached to the land or any part thereof.

In view of the foregoing, this department has no objection to the passage of H. R. 10023, and I recommend that its provisions be enacted into a law.

Cordially, yours,

FRANKLIN K. LANE, Secretary.

DEPARTMENT OF THE INTERIOR,
Washington, June 21, 1918.

Hon. JOHN E. RAKER,

House of Representatives.

MY DEAR MR. RAKER: I am in receipt of your letter dated June 5, 1918, transmitting one to you dated June 4, 1918, from Hon. J. H. Davidson, inclosing a copy of H. R. 10023, entitled "A bill providing for the sale and disposal of public lands within the area heretofore surveyed as Tenderfoot Lake, State of Wisconsin," and a statement of the case, as he understands it, together with a blue-print copy of a diagram prepared by the General Land Office, showing the unsurveyed lands with reference to the meander line of the lake purported to have been run according to the plat approved March 29, 1866, in sections 7, 8, 17, and 18, T. 43 N., R. 8 E., fourth principal meridian, Wisconsin: also the islands in the lake subsequently surveyed, according to the plat approved December 23, 1908.

As chairman of the subcommittee in considering the bill, it is stated in your letter that you desire a legal opinion from this department as to the status of the lands involved.

In the letter from Hon. J. H. Davidson he suggests that involved in the proposition are questions as to the accuracy of the Government survey; the legal effect of meander lines; whether title to fractional parts of sections or lots extend to the meander line or high-water line of navigable lakes, and the extent of errors in the original survey sufficient to justify a resurvey with its attendant results, especially where titles and possession for 40 years might thereby be disturbed.

In regard to the merits of the bill he expresses the opinion that all will agree that if the areas of land between the meander and shore lines of the lake are held not to be a part of the fractional sections or lots adjoining, then, in view of the uses made of the premises and the absence of value except for such uses, those now in possession claiming under color of title ought to be given a preference in the purchase.

In his statement of June 4, 1918, he refers to the owners of the adjacent lands having been in possession of the lands for about 40 years, claiming the same to high-water mark, and to the holding of this department that the claims justified an investigation; also that the purpose of the bill is to give them a preferential right to purchase the land. I have the honor to advise you that in the report of this department dated April 1, 1918, in letter to Hon. Scott Ferris, chairman of the Committee on the Public Lands, House of Representatives, on said bill, reference was made to the application of Reinhardt Rahr, of Manitowoc, Wis., for the survey of the lands on the lake, and to his ownership of lots 1 to 7, inclusive, section 7; lot 2, section 18, adjoining the lake on the north and west side; and in addition, lot 3 of section 18, and islands Nos. 1 and 2 in the lake in sections 8 and 17. It was stated that the official plat approved March 29, 1866, showed no unsurveyed lands in the locality described but that the lake purported to have been meandered and the surveys closed thereon; also that there was another plat on file approved December 23, 1903, of a survey of the islands in the lake executed by A. W. Barber, United States surveyor, from which it appeared that the original survey of the township approved March 29, 1866, did not correctly represent the actual conditions upon the ground as he found that there was unsurveyed land within 5 chains of the largest island surveyed by him.

It was further stated that, from the showing made by Mr. Rahr and from what was disclosed by the Barber survey, it was believed that an investigation of the matter by this department was warranted, attention being called to its decision in the case of Palo Alto County, Iowa (32 L. D., 545), where it was held that the land department had authority to examine into the correctness of the public surveys and to cause a resurvey to be made of any public lands that were erroneously or improperly omitted from

survey when it is clearly shown that the lands were erroneously or improperly omitted and that no sufficient reason then existed for not extending the public surveys over them; but it had no authority to survey as public lands tracts which were at the date of the township survey properly indicated as covered by the waters of an apparently permanent lake.

Mr. Rahr alleged that there were about 300 acres erroneously omitted from the original survey of the township as per the plat approved March 29, 1866. In a letter from the Commissioner of the General Land Office to this department dated April 23, 1918, attention was called to said letter dated April 1, 1918, addressed to Hon. Scott Ferris, reporting on said bill detailing the facts in regard to the matter, and it was recommended that the supervisor of surveys be directed to prepare special instructions in favor of a United States surveyor and transmit them to the General Land Office for examination and approval providing for an investigation of the lands in the field; ⚫ that it be provided in the special instructions that if the United States surveyor should find from the best obtainable evidence that any considerable quantity of lands had been omitted from the regular township survey, according to the plat approved March 29, 1866, as alleged by Mr. Rahr, and were above ordinary high-water mark at that time and in 1848 when Wisconsin was admitted into the Union, that he be directed to survey the same and to report in his field notes the character and condition of the lands on September 28, 1850, when the swamp-land grant was passed (9 Stat., 519), so that a proper plat might be constructed showing, by legal subdivisions, the area of the lands and how much of them, if any, passed to the State under the swamp-land grant.

On the other hand, it was recommended that if the United States surveyor should find that no considerable quantity of the lands were omitted from the regular township survey or that those which may have existed were below ordinary high water mark in 1848, when Wisconsin was admitted into the Union, that he be directed to execute no survey but to report his findings to the General Land Office; also that if a survey was contemplated the United States surveyor be directed to so notify all of the owners of the adjacent lands and the proper State authorities, in order that they might be allowed an opportunity to file any papers in the General Land Office tending to show cause, if any there be, why the lands should not be surveyed and disposed of as public lands of the United States.

These recommendations were approved by the First Assistant Secretary of the Interior under date of May 3, 1918. On May 11, 1918, the supervisor of surveys was requested by the Commissioner of the General Land Office to prepare the special instructions in favor of a United States surveyor providing for the investigation and possible survey of the lands and thereafter forward them to the General Land Office for examination and approval. They have not yet been received.

Tenderfoot Lake is regarded as navigable, and I will call attention to the fact that under judicial decisions navigable waters and the soils under them were not granted by the Constitution to the United States but were reserved to the States, respectively. (Pollard v. Hagan, 3 How., 212; Barney v. Keokuk, 94 U. S., 338; Scott v. Lattig, 227 U. S., 229.)

Where a survey has been correctly executed a meander line is not a boundary. It is run for the purpose of defining the sinuosities of the banks of the stream and as a means of ascertaining the quantities of the lands in the fractions subject to sale and which are to be paid for by the purchaser. "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 watercourse and not the meander line as actually run on the land is the boundary." (Railroad Company v. Schurmeir, 7 Wall., 272; Hardin v. Jordan, 140 U. S., 371; Mitchell v. Smale, 140 U. S., 406, 413.)

In the case of an erroneous survey, where a resurvey is made, the fictitious meander line becomes the boundary of the lots purporting to bound the watercourse. (See Horne v. Smith, 159 U. S., 40; Niles v. Cedar Point Club, 175 U. S., 300; Livestock v. Springer, 185 U. S., 47; Kirwan v. Murphy, 189 U. S., 35; Security Land & Exploration Co. v. Burns, 193 U. S., 167; Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U. S., 186; Gauthier v. Morrison, 232 U. S., 452; Producers Oil Co. v. Hanson, 238 U. S., 325; Lee Wilson & Co. v. United States, 214 Fed., 630; 227 Fed., 827, affirmed by United States Supreme Court Nov. 5, 1917.) Grants by the United States of its public lands bounded on streams and other waters, made without reservation or restriction, are to be construed as to their effect, according to the law of the State in which the lands lie. (Hardin v. Jordan, supra.) In Wisconsin the riparian proprietors of lands on navigable lakes take to the water's edge, the title to the beds of the lakes being in the State. (17 L. D., 326, 329.) The papers transmitted by you are returned herewith.

Cordially, yours,

Alexander T. VOGELSANG,

S R-67-2-vol 1—3

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Acting Secretary.