Blumenthal v. Roll

LEONARD, Judge, delivered the opinion of the court. The question upon the trial of this cause was as to the proper location of one-half of the St. Louis common field lot conveyed by Chancillier to Gamache in January, 1773, under .which the plaintiff claimed the premises in question. The only description of the land given in the deed is in the language of the translation furnished us by the parties : “ One-half of an arpent of land in front by forty arpens in depth,” being “ a portion of a larger tract which he (Chancillier) owns, from having had the same conceded to him by the king, situate in the Grand Prairie, lying to the west of said post (St. Louis),, bounded on one side by the land of Jean Baptiste Hervieux, gun-smith, and on the other side by the part remaining to the’ [116] said Ohancillier.” In order, therefore, to ascertain the half conveyed to Gamache, it was necessary to determine the position of the Hervieux lot, whether north or south of the lot conceded to Ohancillier; and the only evidence given for this purpose resolved itself, at last, into the opinion of Mr. Cozens, a practical surveyor, who gave it as his opinion that the Kirce-réau lot lay next north of Ohancillier, and the Hervieux lot next south of Ohancillier, in the position now occupied, according to the United States surveys, by the lot conceded to Oalve, which the witness thought ought to have been surveyed in the Cul de Sac ; and the court having declared that, on the proof given, the plaintiff was not entitled to recover, the question for our decision is, whether the surveyor’s opinion, as to the locality of the Hervieux lot, was sufficient to require the court to submit the case to the jury. Mr. Cozens testified to the effect that he was a land surveyor, and knew the Grand Prairie common fields; that he became acquainted with them in the course of his employment under the United States surveyor general as a deputy of that officer, during which he had located many lots in the southern part of these fields; that during the progress of the work, in which he was engaged about three years, he was required to investigate the claims lying south of the St. Charles road, in the course of which he examined old witnesses, who showed him the location of the earliest occupants of the land, and that he had in this manner become acquainted with the position of the lots in the Grand Prairie in early times, before the change of government. In ordinary cases, the opinions of a witness can not be submitted to a jury, for the reason that it is the province of the jury and not of the witness to draw the proper inferences, for which purpose it is supposed they have sufficient knowledge. When, however, the solution of the question requires a degree of skill which is usually confined to persons exercising a particular act or profession, and is not possessed by men generally, persons skilled in such matters are allowed to give their [117] opinions. This class of cases, however, ought not to be unnecessarily extended ; and opinions should not be'received except where they are the only means of enabling a jury to come to a correct conclusion. In Davis v. Mason, (4 Pick. 156,) the opinion of a practical surveyor, whether piles of stones and marks on trees were monuments of boundaries, were received ; and in Heirs of Farrar v. Warfield and wife, (8 Mart. N. S. 695,) a surveyor was not allowed to give his opinion as to the proper location of a grant, but was required to state facts, leaving the court and jury to make the proper inference from them. The two cases are consistent, and both opinions, we think, are correct. (Evans v. Greene, 21 Mo. 170.) Although at the trial the evidence was received without objection, yet we are all clearly of opinion that it was insufficient to authorize the court to submit .the case to the jury, and the judgment is therefore affirmed.