Fine v. St. Louis Public Schools

Scott, Judge, delivered the opinion of the court. We have no hesitation in expressing our dissatisfaction with the verdict in this case ; and, but for the rule which restrains this court from -.reversing a judgment for the refusal of the court below to grant a new trial on the ground that a verdict is against the weight of evidence, we would readily remand this cause for another trial. In speaking of the early construction the act of the 13th of June, 1812, had received, that oral evidence of inhabitation, cultivation or possession prior the 20th December, 1803, would prove a title under its provisions, this court remarked that no inconvenience can result from adhering to the received construction of the act. A claim, now for the first time presented, disconnected with any possession, and relying solely on proof of inhabitation, cultivation or possession prior to the 20th December, 1803, to defeat another title, would not receive much consideration, and might, without any apprehension of injurious consequence, be submitted to the consideration of a jury acting under the direction of the court. (Soulard v. Clark, 19 Mo. 582.) This was said in a case on which the defendant was in possession claiming under the act of 1812. It was supposed that a party then presenting his claim for the first time under the act of 1812, after so long a delay, having failed to make any proof under the act of 26th May, 1824, would stand in a very different situation from that occupied by him who was in possession, defending under the act of 1812. The court did conceive that a claimant, under such circumstances, would meet with difficulty before a court and jury, in disturbing one in possession under a valid subsequent title. On the question of abandonment, there is a great difference between [577] tbe case of bim wbo defends bis possession under tbe act, and of him who asserts bis claim for tbe first time, after a delay of thirty or forty years, and after a town, as in this instance, has been built upon the land. We must not shut our eyes to the state of things prior to, and at tbe date of, tbe act of 1812, and that which now exists. At tbe former period, many lots were of little or no value, and tbe presumption of their having been abandoned was no more unreasonable than presuming an old bat or coat bad been thrown away. Tbe country was unsettled. Tbe number of inhabitants bore no proportion to tbe quantity of land, which might be bad at any time by asking for it. Now that these lots have attained their present enormous value, after costly improvements have been made upon them, it is an easy matter to set up tbe pretence that they never were abandoned, when, but for their enhanced value, a claim to them would not have been heard of. If a man has a thing of little or no value, which he leaves and never does any thing with for thirty or forty years, is there any hardship in presuming an abandonment of it, especially in favor of one who has paid a full consideration for it, and after it has been increased in value a thousand fold ? Jurors should not close their eyes to the circumstances by which they are surrounded. They must know that the unprecedented rise in the value of real estate here has sent speculators in all directions seeking for those who may possibly have had a claim to land in St. Louis, and their descendants ; informing them of claims of which they had never before heard ; purchasing them for little or nothing, and then suing in their names to the ruin of honest and industrious men. It is obvious from the state of things existing here, that the interests of society — and it is in harmony with the law — require that, in trying claims under the act of 1812, jurors should be liberal in indulging a presumption of abandonment against claims which have been long neglected, and whose only support is on slight oral evidence of inhabitation, cultivation or possession sixty or seventy years before they were asserted. These observations have been induced by the facts set forth [578] in the record, showing an attempt of the plaintiffs, with their title, to overcome that of the Schools. How the case would stand were the plaintiffs seeking to recover from one who relied solely on the title derived from their ancestor, we will not undertake to determine, as we do not know that the question is in the record ; for, from the arrangement made, it seems that the result of the suit as to the Schools is to determine the fate of the other defendants. Other cases may present different phases. In controversies of this kind, it is obvious that each case must be determined by its own circumstances, mingled with the consideration that a mistrust of all claims that have long been dormant is inculcated by our law. We are of the opinion that the court below erred in rejecting the extracts from the Livre Terrein. These extracts were important to show that, under the Spanish government, it was not unusual for the inhabitants to abandon their possessions. The jury which tried the cause were living under our system of laws, where such a thing as abandoning the right, title or claim to real estate is not known. Hence, in determining a question of abandonment under another government and a different state of titles, it was material for them to know that the practice of abandoning possessions was not unusual. Not that an abandonment by one is proof of an abandonment by another, but that such a thing was practiced. A jury acting under a system or law where such a thing as an abandonment is not known, in determining the question whether an abandonment took place under a former government in times long past, may take into consideration the fact that abandonments were not unusual, as furnishing some evidence as to the probability of an abandonment having taken place in a particular instance. The idea of an abandonment being foreign to the notions of our jurors, it was right not only that they should know that there was a law on the subject, but that acts of abandonment did actually take place. As the fact was an ancient one, and one that transpired under another government, the jury should have been put in the [579] game situation, as to knowledge of surrounding circumstances, as their own experience and observation would have furnished had they been trying a fact which occurred in their own times and under their own government. , Judge Ryland concurring, the judgment will be reversed, and the cause remanded.