(43 Sup.Ct.)

#652

ment. The attack upon it by plaintiffs in tax has been paid on any of the property for error is based upon a confusion of rights. a portion of the five years, or that the ownerAs pointed out by the Supreme Court of ship of the property has not been in the deErrors, executors and administrators do not cedent for a portion of that period. The own the property committed to them for provision, however, is but a way of fixing a administration. It goes to them subject to penalty for the delinquency, which it is comthe liabilities and burdens upon it in the petent for the state to do. We said in Westhands of its owner, and whatever interest ern Union Telegraph Co. v. Indiana, 165 U. distributees or creditors may have is subject S. 304, 310, 17 Sup. Ct. 345, 41 L. Ed. 725, to the same liabilities and burdens. Subject, that the amount of a penalty is a matter for we may say, as the court decided, to the tax which the state has imposed on its disposi- the Legislature of a state to deter*mine in tion or devolution, and the tax does not take on a different quality or incident because it is, or has the effect of a penalty. And the court, construing the statute, declared it was a provision for penalizing a delinquency-the *651 delinquency *of the decedent, and made to survive "by statutory sanction." "In effect," the court said, "this statute is a penalty imposed upon the estate because of the delinquency of the decedent, and no less permissible than the penalty tax against the decedent kept alive by statutory sanction."

[2] Plaintiffs in error do not contest the

its discretion, and in accordance with the principle we sustained a penalty of 50 per cent. of the taxes assessed against the telegraph company and unpaid by it.

[4] Section 1190 was passed in 1915 and went into effect August 1st of that year. Decedent died in May, 1919, plaintiffs in error contend, therefore, that in one of the years (1914) of the five of omission to pay taxes the only penalty provided by law therefor was the addition of 10 per cent. to the assessed valuation of the omitted property." Therefore, it is the further contention, the

principle expressed but deny its application attempt of the section is "to reach into the by asserting: (1) There was no debt owed past and provide 'greater punishment than by decedent, (2) no action under the statute the law did when the crime was commitarose against her; (3) no penalty had been ted," and hence incurs constitutional proincurred by her because as long as she lived hibition as an ex post facto law. the statute was inapplicable to her; (4) it is not a tax for its primary object is punish

ment, not revenue.

The assertions are unjustified. There was an evasion of duty by decedent, and the obligation she incurred, and should have discharged, was imposed upon her estate, and legally imposed, for out of her estate it can only be discharged. The payment of taxes is an obvious and insistent duty, and its sanction is usually punitive. The Connecticut statute is not, therefore, in its penal effects, unique, nor are they out of relation or proportion to a decedent's delinquency.

[3] The Court of Errors recognized that the tax of the statute "may not represent what the decedent would have been required to pay, had" she "paid the state or local tax." And, as we have seen, the tax may be upon the appraised inventory value for the five years next preceding the death of the decedent, with a proportionate deduction if a

The contention is untenable. The penalty of the statute was not in punishment of a crime, and it is only to such that the constitutional prohibition applies. It has no relation to retrospective legislation of any other description. Johannessen v. United States, 225 U. S. 227, 242, 32 Sup. Ct. 613, 56 L. Ed.

1066.

The final contention of plaintiffs in error is that the statute can only be sustained on the assumption that "in the last analysis the property of deceased persons belongs to the state."

The contention is extreme. The power of taxation, with its accessorial sanctions, is a power of government, and all property is subject to it; and it is a proper exercise of it to satisfy out of his estate the delinquency of a property owner. It is so complete that it does not need the assumption of universal ownership by the state to justify it. Affirmed.

(260 U. S. 662)

UNITED STATES v. LANE et al.

No. 160.

Greene, Jr., and others, and against A. C. Loucks and others. Decrees for the plaintiff in each case were reversed by the Circuit Court of Appeals (274 Fed. 145, 290),

SAME v. GULF REFINING CO. OF LOUISI- and complainant appeals in each case, ex

ANA.
No. 163.

cept the Loucks Case, in which it brings certiorari. Decrees of the Circuit Court of

SAME v. SOUTHWESTERN GAS & ELEC- Appeals affirmed.

TRIC CO. et al.

No. 162.

SAME v. GULF REFINING CO. OF LOUISI

ANA.
No. 161.

SAME v. GREENE et al.

No. 192.

SAME v. LOUCKS et al.
No. 191.

(Argued Jan. 2 and 3. 1923. Decided Jan. 22,
1923.)

1. Navigable waters 37 (4)-Variance between meander lines and shore held not to prevent extension of grant to water line.

Mr. Assistant Attorney General Riter, for the United States.

663

*Mr. S. L. Herold, of Shreveport, La., for appellees in Nos. 160, 161, 162, and 163, and respondents in No. 191.

Mr. Elias Goldstein, of Shreveport, La., for appellees in No. 192.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

These suits involve claims of title on the part of the United States, hereinafter called the plaintiff, to various parcels of land lying along the border of Ferry Lake, a navigable body of water in Caddo parish, La. AnswerIn suits by the United States to recover ing these claims, the defendants in the restrips of land of varying shapes and widths be- spective cases averred that plaintiff, long tween the meander lines stated in the patents before the bringing of the suits, had conand the shore of a navigable lake, where it veyed by patents to private persons certain appeared that the meander line, which cor- fractional subdivisions bordering on responded with the shore of the lake as shown lake; that these fractions were representon the plat referred to in the patents, was evi-ed on the official plat of the government dently intended to follow the lake shore, but at places extended out into the water, and at other places was some distance back from the shore, the aggregate of the land outside the meander line being 70 acres, and of the water within the meander line being 44 acres, the ordinary rule applies, and the patents conveyed title to the shore of the lake.

2. Navigable waters 37 (4)-Crescent containing 97 acres between meander line and shore held covered by patents.

the

survey, made by one Warren in 1839 and duly approved and filed, as bounded on the lake side by the waters of the lake; that in each of the cases the land in controversy was a small tract, lying along the edge of the lake and constituting part of the particular fractional subdivision so conveyed; and that, consequently, plaintiff had divested itself of whatever title it originally had.

Certain alternative defenses, based upon the alleged ownership of the lands by the state of Louisiana, were pleaded, but, in view of the conclusions we have reached, it is not necessary to consider them. The Dis

Where two patents granting public lands described them with reference to a plat showing a meander line, which purported to be the shore of a navigable lake, but a later accurate survey showed that between the meander line and the shore there was a strip of land, rough-trict Court entered decrees for the plaintiff ly in the shape of a crescent, which contained 97 acres, about one-third of the stated area of the fractional subdivisions granted, and which had an extreme width of 1,200 feet, the patents granted the land to the water's edge, in view of evidence as to the difficulty of making an exact survey of the shore line at the time the original survey was made.

Appeals from the United States Circuit Court of Appeals for the Fifth Circuit.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Fifth Cir

cuit.

Six separate suits by the United States against C. W. Lane and others, against the Gulf Refining Company of Louisiana, against the Southwestern Gas & Electric Company and others, against the Gulf Refining Company of Louisiana, against Charles J.

which the Circuit Court of Appeals reversed (274 Fed. 145, 290), and the cases are here upon appeal except the Loucks Case, which comes on certiorari. The foregoing averments of fact contained in the answers are established by the record.

*664

[1 *1916-1917, nearly 80 years after the Warren survey-the lands in the meantime having become valuable for their deposits of oil and gas-a new survey was made under the direction of the General Land Office. This survey shows that the line run by Warren, purporting to meander the shore of the lake, did not in all instances coincide precisely with the water's edge. In the four cases first named in the title, the parcels of land lying between the meander line and the lake are of small extent. The meander line throughout its length approximately

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(43 Sup. Ct.)

conforms to the sinuosities of the shore, [ all the various sinuosities of the water line, is sometimes, however, running for short dis- the very occasion and cause of running the metances inland, and sometimes for short dis- ander line, which by its exclusions and inclutances into and through the water. In the sions of such irregularities of contour produces first-mentioned suit the Warren survey in- truth as to the quantity of upland contained an average result closely approximating to the dicates a fractional subdivision containing in the fractional lots bordering on the lake or 26.80 acres; the new survey adds 5.67 acres. stream. The official plat made from such surIn the second suit the Warren survey indi- vey does not show the meander line, but shows cates 23 acres; the new survey adds 12.72 the general form of the lake deduced therefrom, acres. In the third suit the Warren survey and the surrounding fractional lots adjoining indicates 155 acres; the new survey adds and bordering on the same. The patents when 27.87 acres. In the fourth suit the War- issued refer to this plat for identification of the lots conveyed, and are equivalent to and have ren survey indicates 114.80 acres; and the the legal effect of a declaration that they exnew survey adds 11.49 acres. *666 tend to and are *bounded by the lake or stream. Such lake or stream itself, as a natural object or monument, is virtually and truly one of the calls of the description or boundary of the premises conveyed; and all the legal conse quences of such a boundary, in the matter of riparian rights and title to land under water, regularly follow."

The lands in question are all in township 20, the first mentioned being in section 3, the second in section 10, the third in section 13, and the last in section 24. Follow ing the meander line of the Warren survey the distance from the first of these tracts to the last is about five miles. Leaving out of

consideration the large tract involved in
Producers' Oil Co. v. Hanzen, 238 U. S. 325,
35 Sup. Ct. 755, 59 L. Ed. 1330, and the
large tract involved in Jeems Bayou Fishing
& Hunting Club v. United States (decided
January 2, 1923) 260 U. S. 561, 43 Sup. Ct.
205, 67 L. Ed. —,
the aggregate of the va-
rious parcels lying outside the meander line
is about 70 acres, and the aggregate of the
various areas of water included within the
meander line is about 44 acres. The facts
bring the cases fairly within the rule an-
nounced by this court in Mitchell v. Smale,
140 U. S. 406, 11 Sup. Ct. 819, 840, 35 L. Ed.
442, and not within the exception which was

*665

followed in the Jeems *Bayou Case. So far as the instant cases are concerned, there is nothing in the circumstances to suggest the conclusion that any fraud was committed or palpable mistake made by Warren. At the time of his survey the lands were of such little value, the locality so wild and remote, and the attendant difficulties SO great that the expenditure of energy and money necessary to run the lines with minute regard to the sinuosities of the lake would have been quite out of proportion to the gain. We are of opinion that the survey of 1839, except as to the two large tracts just mentioned, is not open to challenge. precisely accurate survey of 1916-1917 would probably never have been made, but for the greatly increased value of the lands due to the discovery of oil and gas therein. It is unnecessary to do more than quote the language of this court in Mitchell v. Smale,

supra:

The

"The pretense for making such surveys, arising from the fact that strips and tongues of land are found to project into the water beyond the meander line run for the purpose of getting its general contour, and of measuring the quantity to be paid for, will always exist, since such irregular projections do always, or in most cases, exist. The difficulty of following the edge or margin of such projections, and

[2] While the facts are somewhat different and the extent of the omission somewhat greater, we think the general rule should, likewise, be applied in the remaining two cases. The Warren survey aud plat here indicate an area of about 271 acres in the fractional subdivisions conveyed. The lands added by the new survey constitute a compact body of 97.64 acres-65.77 acres of which are involved in the Greene Case and 14.13 acres in the Loucks Case-having the outline of a long and rather irregular crescent, with the outer curve next to the water. The inner boundary, running between the two points of the crescent, is made up of a series of straight lines, with intervening angles conforming to the outlying curve only to a roughly approximate degree. The length of the tract is nearly 4.000 feet and the extreme width about 1,200 feet. Running back from the shore there are numerous ravines, creating, in and along the outer rim of the tract, a series of alternating points and indentations. The evidence justifies the conclusion that in 1839, and especially in time of high water reaching back into the ravines, the establishment of a line precisely coincident with the water's edge would have been a matter of expense and difficulty wholly disproportionate to the then value of the omitted acreage. As in the four cases first discussed, the Warren plat of the survey referred to in the patent represents the lake as the boundary. The survey, taken as a whole, with the exception of the two large tracts already mentioned, follows with a fair degree of accuracy the contour of the lake, and the evident purpose was to include in it all the land to the wa667

ter's edge. Considering the circumstances in respect to the character and value of the lands, the wildness and remoteness of the region, and the difficulties surrounding the work of the surveyors, the failure to run the lines with more particularity was not

unreasonable, and we are constrained to | and interest. The note and mortgage were agree with the lower court in holding that dated October 14, 1905. the waters of the lake, and not the traverse line, constitute the boundary.

The decrees of the Circuit Court of Ap-it, under the laws of the state, foreclosed it peals in all the cases are therefore

In Error to the Supreme Judicial Court of ror's) rights or cause of action herein," and the State of Maine.

United States and to the covenant of the mortgage deed itself and, therefore, void and of no effect." An estoppel was also pleaded. The mortgage contained a provision by which the mortgagor covenanted with the Mr. Frank H. Haskell, of Portland, Me., mortgagee that the right to redeem the mortfor defendant in error.

gaged premises should be forever foreclosed in one year next after the commencement of Mr. Justice MCKENNA delivered the opin- foreclosure by any of the methods then proion of the Court.

Suit to redeem a mortgage which was ex-vided was entry into possession of the mortecuted by defendant in error to one George

gaged premises and holding the same by consent in writing of the mortgagor, or the person holding under him.

It is, however, provided by chapter 192 of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(43 Sup.Ct.)