Milburn v. Hortiz

Scott,• Judge, delivered the opinion of the court. The question presented by the record for our determination does not, in our opinion, involve the necessity of an examination of the correctness of the survey of the outboundary of St. Louis, made by the officers of the general government. We will therefore proceed at once to an examination of the point on [537] which the cause turned below, viz., that a common field lot'of the village of St. Louis, lying beyond the outboundary above referred to, was not confirmed by the act of the 13th June, 1812. In all the litigation which has grown out of that act — and it is believed that it has given rise to more than any law, state or federal, which has been in force here — an instance is not recollected in which it was maintained that a survey of the outboun-dary of the village of St. Louis was a muniment of the title of a private claimant to a lot confirmed by the act of 1812. In-habitation, cultivation or possession prior to the 20th of December, 1803, by an inhabitant of the village, was all that has been supposed was necessary to be proved in order to maintain or defend an ejectment for a common field lot claimed under the act of 1812. That act, in its terms, requires no such thing. The confirmation of the claims of individuals is made directly and absolutely, without any reference to an outboundary. The language of the act is, that the rights, titles and claims to town or village lots, common field lots, &c., shall be and the same are hereby confirmed to the inhabitants of the respective towns or villages. Afterwards, it is made the duty of the principal deputy surveyor to survey the outboundary lines of the several towns or villages, so as to include the out-lots, common j lots and commons thereto respectively common field lot belonging to one of the er is confirmed by the act, can the failure of thefe to include it in his survey take away the claimfl The fact that no survey of the outboundar|$ twenty- eight years after the passage of the deemed conclusive on this question. It has alwu posed that the idea of an outboundary was suggested by the reservation made by the act for the use of schools, which being limited to one-twentieth of the area within the boundary, it was necessary in order to ascertain which were the lands reserved for schools. Had there been no reservation for schools, no outboundary would have been thought of, nor would any have [538] been required. Sueb has been tbe practical construction of tbe act of 1812, and it would now be unsafe to depart from it, as many titles may repose on the belief of its correctness. Had tbe idea possessed tbe mind of Congress that a lot must have been within an outboundary in order to have been confirmed, what would have been more natural than first to have required the survey of such a boundary, and then to have declared that all out-lots, common field lots, and commons, within the same, should be confirmed to the inhabitants of the respective villages and towns ? Instead of this, they confirm the inhabitants in their rights, and then require tbe outboundary to be surveyed, so as to include them. How unwise it would have been to have given tbe inhabitants lots, and then to have conferred on tbe principal deputy surveyor an absolute power to take them away by his survey at any time thereafter, even after the lapse of twenty-eight years. Believing that the idea of an outboun-dary had its rise in the reservation for the use of schools, there is nothing, in our opinion, which would warrant us in making it interfere with the claims of private individuals. Had a correct outboundary of the village been surveyed immediately after the passage of the act, there would have been but little hardship in holding claimants to it; but to require it now, for the first time, more than forty years after the passage of the act, as a muniment of title, might disturb many titles and produce a wide field for litigation. In the case of Kissell v. The Public Schools, (18 Howard, 218,) the Supreme Court of the United States says : “It is proper to remark that we are here dealing with the survey marked ‘I’ (which is the survey in question) and ascertaining its effect as regards the lands granted and allotted for school purposes, and are not to be understood as having expressed any opinion on the effect of this outboundary survey on titles situated beyond it and claimed to have been confirmed by the act of 1812, or which were subject to be identified by the recorder of land titles under the act of 1824.” Adopting the opinion which is here only intimated, we, on the [539] other hand, in giving our judgment in relation to the question involved in this controversy, do not wish to be understood as expressing any opinion in relation to the question, how far the disregard of the survey, in determining the rights of individuals under the act of 1812, will affect the public schools ? In saying that individuals are not confined within the limits of the out-boundary, we do not wish to be understood as expressing the opinion that the schools are also at liberty to depart from those limits, and claim a new survey of the outboundary. The other judges concurring, the judgment will be reversed, and the cause remanded.