Oliver Wendell Holmes, Jr.

“ Smale have stood as authoritative declarations of the law. Probably in most cases the statute of limitations has cured the defects of title which those cases may have shown. Meantime many titles must have passed on the faith of those decisions. The United States can meet them by the form of its conveyances. It seems to us that it would be likely to do more harm than good to allow them to be called in question now.
It is said that the land under water was not embraced in the survey of 1834. ”

“ But probably the cases are comparatively rare in which that understanding was acted on by an attempt subsequently to convey the land under water on the further side of the line at dates before the transactions with which we have to deal. The title to such land was not considered of much importance in the early days, or worth the trouble of an independent survey. See Newson v. Pryor, 7 Wheat. 7, 11, 5 L. ed. 382, 383. The United States was more anxious for settlers than for revenue from that source. ”

“ The Calumet company claims title through mesne conveyances from the state of Indiana. The state of Indiana got its title under the swamp-land act, September 28, 1850, chap. 84 (9 Stat. at L. 520, Rev. Stat. §§ 2479 et seq., U.S.C.omp. Stat. 1901, p. 1586) , and patents of the United States, dated 1853, purporting to be in pursuance of that act, and referring to the official plat of survey, which was made in 1834. The patent set forth describes 'the whole of fractional sections' enumerated and bordering on the water, in which sections lies the disputed land. ”