Harrison v. Page

Gamble, Judge, delivered tbe opinion of tbe court. 1. In tbe case of Page v. Scheibel, 11 Mo. Rep. 167, tbe controversy was between Page, claiming under a New Madrid location, made in tbe name of Martin Coontz, or bis legal representatives, and Scheibel, claiming a common field lot in tbe Grande Prairie common field. Tbe claim to the common field lot was included in tbe report made to congress by tbe recorder of land titles, and was confirmed by act of congress of tbe 29th of April, 1816. Tbe report of tbe recorder, which was in a tabular form, referred, in one column, to tbe provincial land book or Livre Terrien, for tbe concession of tbe land which bad been made to Joseph Calvé, and in another column, stated that tbe lot bad been cultivated pi’ior to 1803. In one column it was stated, that there was no plat of tbe land, and in tbe last column, containing bis opinion, are tbe words, “confirmed to be surveyed.” Tbe survey of tbe tract under this confirmation was made adjoining that now in controversy. The present suit is between Page, claiming under tbe same New Madrid location, and Harrison, claiming under tbe confirmation of a common field lot made by tbe act of 1816, upon tbe same report of tbe recorder, in tbe same terms, in favor of Chan-celier’s representatives. In this, as in tbe other case, evidence was given to prove that tbe lot bad been cultivated prior to 1803. So far as tbe questions presented in tbe present case have been decided in Page v. Scheibel, they will not now be reconsidered, or tbe decision disturbed. Tbe case was fully presented to tbe court and tbe decision given with care and delib - eration; and unless, under such circumstances, there was in tbe decision some error that we regarded as very manifest, we Avould not feel disposed to overrule it. If, in the argument or reasons employed by tbe Judge who gave tbe opinion, there — 203 — should be found parts which are open to objection, yet the conclusions of the court, upon the questions arising in the cause and decided, will not lose their force as authority, by a criticism of the argument, even if successful. Before an examination of the questions in this cause, it is proper that the mind be, in some degree, possessed of a history of the titles under consideration. The act of congress of the 13th of June, 1812, after confirming the rights, titles and claims of the inhabitants of the several Spanish towns and villages in Missouri to their town lots, out lots and common field lots, Which had been inhabited, cultivated or possessed prior to the 20th of December, 1808, invested the recorder of land titles, by its 8th section, with the powers previously possessed by the commissioners, in relation to claims which had been filed and not decided upon by the commissioners, as well as claims by actual settlers, which the act allowed to be filed before him. His powers w.ere, however, limited in the section, by denying him the right to confirm claims, and mating his decisions subject to revision by congress. He was required to make a report to the commissioner of the general land office, of the claims, with the substance of the evidence in support of them, and with his opinion thereon, which was to be laid before congress. The report made by the recorder upon claims, which, in his opinion, ought to be confirmed, had one column for reference to the concession, warrant or order of survey, another for reference to the survey, another for the name of the claimant, another for the quantity claimed, another for the situation of the property, another for acts of ownership over the property, and the last for the opinion of the recorder. In the ease now before us, Livre Terrien, No. 1, page 9, is referred to for the concession; under the head of survey, it is stated, that the' claim has not been platted; the claimants are Chancelier’s> representatives; the quantity, 2 by 40 arpens ; situation, an out lot in the fields of the Big Prairie, St. Louis ; the acts of ownership, possession and cultivation prior to 1803 ; and the — 204 — opinion of the recorder is, that the claim ought to be confirmed for 80 arpens, to be surveyed. The claims thus reported, were confirmed, by the 2d section of the act of April 29, 1816. At the period that the government acted on these claims, •and confirmed that now under consideration, there was no opposing claim to the land now in' controversy, and not only by •the terms of the confirmation, but by the commands of the law .governing the surveyor, it was his duty to survey the land embraced by the claim, as it was confirmed. The survey of Coontz’ New Madrid claim was not made until July, 1818. If the land in controversy is properly included within the ¡survey made under the confirmation, then the claimant under •the New Madrid certificate, can have no title to it, for it is cov«ered by a specific grant by congress, made before his title attached to it. Accordingly, the principal questions disputed in the court below and discussed here, relate to the proper location of the confirmation. It was denied, as a fact,- that the •common field extended as far south as this land, and if it did, that .any of the lots projected to the east of its general boundary, so as to include the land in controversy. For the purpose of sustaining this view of the facts, it was insisted as a matter of law, “that in order to constitute an out lot or common field.lot, the tract must have been recognized as such lot under the Spanish government, and must have been appurtenant to the village of St. Louis, so as to be subject to the authorities of the .village, in the same manner as the others which were without dispute, common field lots. ” It was next insisted, “ that .if the land in controversy was not included in the official surveys of the range of common field lots of the Grande Prairie, under the'Spanish government, and if there were Spanish- surveys of the several ranges of the common field lots belonging to St. Louis, which were recorded and remained among the archives of the country, and if the town of St. Louis had not exercised control -over the tract in question, then it was not — 205 — a common field lot, within the meaning of the act of June 13tb, 1812.” 2. It was held in Page v. Scheibel, that the titles of persons claiming common field lots, under the act of 1812, do not depend upon their being able to produce either concessions or surveys of the land claimed. The court says : ‘ ‘ These permissions, (permissions to settle) it is probable, were most generally, if not always, in writing, and accompanied by a survey made by an officer selected and authorized by the government. But the title of the claimants under this government does not depend upon the existence or proof of any such documents.” If neither a concession or survey is a requisite to the title when confirmed by the act of congress, it is difficult to understand what other evidence of recognition, under the Spanish government, must be given by the claimant, in order to show that the land was a common field lot. It seems to be thought necessary that the confirmee should show that the lot was, in some manner, subject to the village authorities, in order to establish the fact, that it was a common field lot. If the syndics of the village would possess any authority over the lot, or its owner, by reason of its being a common field lot, certainly it is not necessary that the owner should give any evidence of the exercise of such authority, in order to establish the fact, that his property is of the description known as a common field lot. 3. Whether it is a lot of that description, or not, will be determined by its being one of a series of lots in the vicinity of the village, occupied and cultivated by the inhabitants of the village in a common field. The first instruction given by the court, upon its own motion, properly describes a common field lot, with two unimportant errors. In that instruction, it is mentioned, that the ranges of such lots were protected by a common fence in front, and that strips of uncultivated land were left between the cultivated lots, marking their boundaries. In the course of litigation, that has arisen in relation to this description of property, it has been shown that there were com — 206 — mon fields which had no fence upon any of their lines ; and the strips of land left uncultivated between the different lots cultivated, were, by no means, generally found in such fields. In other respects, the description of such lots given in the instruction, is correct. 4. In determining whether the lot claimed by Chancelier was a common field lot, within the meaning of the act of June, 1812, too much importance was attempted to be given to Spanish surveys of the common fields. The evidence given in this case abundantly shows, that a tract of country was not made a common field under the Spanish government, by running an exterior boundary, and then subdividing the contents into lots, but the lots were granted or surveyed in succession, each being-bounded on a lot previously granted, and so the common field was capable of indefinite extension, and each survey, when made, was the survey of a single lot. There could not be, under such circumstances, any survey of a boundary of the common field, which would show more than that, at the date of the survey, the lot granted had a certain extent, and as it would not be any limitation upon the power of the Lieutenant Governor to grant, so it would not afford any evidence that he had not subsequently granted lots or permitted them to be occupied. In fact, without being accompanied with some order directing such survey to be made, it is very questionable whether it would be any evidence against an individual claiming land which ought to have been embraced within it. The fifth instruction given by the court, on its own motion, referred to the jury the question of fact, whether the lot confirmed to Chancelier’s representatives was properly located by the United States survey, and directed them that, if they found that it ought not to have been projected to the east of the eastern line of the Picard lot, which was north of it, they should find for the defendant. This instruction substantially embraced the points contained in the fifth and sixth instructions asked by the defendant. 5. The questions presented upon some of the deeds under — 207 — which the plaintiff claimed, made by part of the representatives of Chancelier, who are named in the first instruction of the defendant, are not without difficulty. The grantors describe the land they conveyed as “li- arpens, being 60 arpens, residue of 2 by 40 arpens, granted by the Spanish government to Louis Chancelier, the said Louis Chancelier having, in his lifetime, conveyed J arpent to one Gamache, the said land being situated in the Grande Prairie, west of the city of St. Louis, and described, as to boundaries, in the Livre Terrien, or Spanish record.” Evidence was given for the purpose of showing that the tract granted to Chancelier in Livre Terrien, would not, if properly located, include that now in controversy. It appeared that the grant was made on the 20th of January, 1767, to Chancelier, for 2 by 40 arpens in the Grande Prairie, bounded on one side by Jean Hervieux, and on the other by-. The concession to Hervieux is dated 30th December, 1766, and is for 2 arpens by 40, bounded on one side by Louis Chancelier, and on the other by -. These two lots had one line common to them, and there was no boundary called for on the other side of either ; so that all that could be determined by their calls was, that they were to adjoin each other, but which is to the north or south of the other, does not appear. There did not appear to have been any Spanish survey locating these grants, nor any acts of the grantee, Chancelier, claiming to hold land under his grant, at any place other than that where the grant is now located. Three years after the date of the concession to Chancelier, a concession was made to Condé for a tract of 2 by 40 arpens, bounded on one side by Hervieux, and on the other by Deshétres. There appears to have been no concession to Deshétres. It is evident that the calls in Condé’s concession do not assist in locating Chancelier, for the concession to Hervieux may be either north or south of Chancelier, and so, Condé’s grant, calling for Hervieux, may just as well be answered, if Chancelier is at the south part "of the common field, as if he were at the north. Rut, without stopping to examine the evidence in detail, it is sufficient to say — 208 — that, in the absence oí any call in the grant that can fix its location, and without any survey fixing it at a place different from that now claimed, and without any claim set up under the grant at a different place, there is nothing to authorize a jury in finding that the grant was for different land. On the other hand, the confirmation refers to the concession as contained in Livre Terrien, and declares that the land was cultivated prior to 1803, and .this, in the absence of any calls in the grant that would separate it from the possession, must be understood as connecting the grant with the possession, and with all the authority of an act of congress, locating the grant upon the land cultivated and possessed prior to 1803. In Page v. Scheibel, it is distinctly asserted, that the confirmation of the claim, as reported by the recorder, is a confirmation of the title to the land possessed and cultivated, and that the statement of the possession and cultivation is the material and controlling description of the land embraced by the confirmation. The language of the court is, “ The assertion of the recorder that the lot recommended for confirmation was occupied or cultivated by the claimant, constitutes a material part of the description of the premises, and must be taken in connection with the metes and bounds given in the concession. If there be a conflict between the two, the latter cannot control.” In the present case, we have no call in the grant but the land of Hervieux, and the land of Hervieux is not located either by any calls in his grant, or by any survey, or by any acts of ownership under his grant. The grant, then, of Ohancelier, was without any location, and without any calls that would interfere with its being located upon any land in the Grande Prairie common field, which he might have claimed and possessed under it. After the act of congress was passed, which confirmed the claim and located the previously floating concession upon the land possessed and cultivated, the deeds were made by Chan-celier’s representatives, which are now considérelas conveying other land than that confirmed, upon the supposition that the — 209 — concession, was for other land. These deeds refer to Livre Ter-rien for the boundaries of the land conveyed,, but being made at a time when the action of the government had located the concession upon the land possessed and cultivated, and there being no call in the concession inconsistent with such location, it must be understood that the grantors and grantees in the deeds were contracting about the land upon which the concession had been located ; and when we find the only concession in Livre Terrien, made to Ohancelier, thus located, we have no difficulty in saying, that the deeds would pass the land on which the concession, by the consent of the government and the claimant,, had been located. Although the United States survey of the land confirmed was made after these deeds were executed, it will serve to show the understanding of the parties — both the government and the confirmees — of the meaning and operation of the confirmation. It purports to be a survey of a tract of 80 arpens, 11 sitúate in the Grande Prairie common fields of St. Louis, ” and as “ being the tract of 2 by 40 arpens granted to Louis Ohancelier on the 20th of January, 1767, by Louis St. Ango de Rellerive, commandant of the post of St. Louis, in the Spanish province of Upper Louisiana, (see Livre Terrien, No. 1, page 9,) and confirmed to Chancelier’s representatives by the second section of the act of congress, of the 29th of April, 1816, confirming all claims embraced in the report of the recorder of land titles, ” &c. This survey is of the land possessed and cultivated, according to the testimony in the case, and it is apparent that it was made upon the understanding that the concession in Livre Terrien was located upon the same land. The Court of Common Pleas properly refused the first instruction asked by defendant, which relates to these deeds, and although the fourth instruction, given by the court upon its own motion, is involved and rather confused, it contains all that was necessary to be said to the jury upon this question. Upon the whole case, without any more detailed examination — 210 — g£ the points presented in the instructions, it is the opinion of the court, that there is no error requiring a reversal of the judgment of the court, and with the concurrence of the other Judges, it is affirmed.