City of Carondelet v. City of St. Louis

RiChabdson, Judge, delivered the opinion of the court. In the consideration of this case, it must be assumed that the plaintiff could have made good'the order to impeach and invalidate the survey of 1834 of the Carondelet common ; and the court, in excluding the evidence and giving the instruction which decided the case, must have held, either that the survey was binding though disapproved by the United States and rejected by the plaintiff, or that, admitting as proved every thing that was offered to be proved, the plaintiff had no standing in court without a survey, or that the opposing survey of the St. Louis common was conclusive on the rights of the plaintiff without, a survey, or with one that did not include the locus in quo. The case presents a conflict between the boundaries of the common of Carondelet as claimed-by the plaintiff, and of the common of St. Louis as designated by a United States survey ; and the questions to be decided are, first, whether the plaintiff can recover without a survey, and, secondly, whether the survey of the common of St. Louis is conclusive on Caronde-let as to the land included within it. Both parties derive their respective titles from the act of Congress of the 13th of June, 1812, and these questions must be determined by the construction of that law, and the judicial decisions which have been made under it.' In reference to private claims, at least, it has been so often decided by this court and the Supreme Court of the United States, in every instance in which the subject has been considered, that the act proprio vigore operated to confirm the “ rights, titles and claims” to the property described in the first section, that it is no longer an open question; and the proposition is so well settled in so many cases, that the bare statement of it carries with it the familiarity and force of an axiomatic truth. (Soulard v. Clark, 19 Mo. 581.) The act was a complete divestiture of all the — 460 — title of the United States, and nothing being reserved by the government, nothing was required to be done by the con-firmee. Mr. Justice Campbell observes, in Guitard v. Stoddard, 16 How. 510, that “ the act of 1812 makes no requisition for a concession, survey, permission to settle, cultivate or possess, or of any location by a public authority, as the basis of the right, title and claim upon which its confirmatory provisions operate. No officer was appointed to survey or to locate any individual right. All the facts requisite to sustain the confirmation — what were village or town lots, out-lots, common field lots or commons — what were conditions of inhabitation, cultivation or possession, to bring the claimant within the act — were referred to the judicial tribunals.” The act of May 26th, 1824, supplementary to the act of 1812, by the first section declared “ that it shall be the duty of individual owners or claimants of town or village lots, out-lots and common field lots, in, adjoining, or belonging to the several towns or villages” of St. Louis, Carondelet, <fcc., whose lots were confirmed by the act of 1812, to proceed within eighteen months thereafter to designate their lots by proving before the recorder the fact of inhabitation, cultivation or possession, and the boundaries and extent of each claim. As this act spoke in a tone of command, it was supposed by some persons that the United States had the right to impose on the claimants the duty of proving their claims before the recorder, and that the assertion of the authority implied that some power existed over the subject which had been reserved. But it was decided by this court that the act of 1812 was absolute, depending only on the fact of inhabitation, cultivation or possession prior to the 20th December, 1803; (Soulard v. Clark, 19 Mo. 582; City of St. Louis v. Torey, 21 Mo. 243 ;) and the question was ably discussed and decided on like reasoning and in the same way by the Supreme Court of the United States, in Guitard v. Stoddard, 16 How. 494. The rights, titles and claims to commons were confirmed by the same section of the act that confirmed the titles to town lots, out-lots, &c.; and it will be observed that the first sec — 461 — tion of tbe act of 1824 does not mention the commons or include them within any of its requirements ; and if the claimant of a town or common field lot can recover without a survey, and in the face of a law that directs him to prove his claim and the boundaries and extent of it before the recorder, wc can not appreciate the force of the reason that forbids the claimants of common from recovering without a survey. By the first section of the act of January 27,1831, the United States relinquished to the inhabitants of the towns or villages of St. Louis, Carondelet, &c., all the right, title and interest of the United States in and to the town or village lots, out-lots, common field lots and commons, in, adjoining and belonging to the said towns or villages, confirmed to them respectively by the first section of the act of 1812, to be held by the inhabitants of the said towns and villages in full property, according to their several rights therein. The second section relinquishes the right, title and interest of the United States to the town lots, &c., reserved for the support of schools by the second section of the act of 1812. The object of the second section of this act is readily understood, for it was necessary to divest the United States of the title to property, which had never before passed, but had only been reserved. But the object of the first section is not perceived, for there was nothing on which it could operate, and there was no interest remaining in the United States to be relinquished if the whole passed in 1812. No one-pretends that the act was necessary to perfect any right to private claimants, and no argument can be drawn from it to jDrove that the rights, titles and claims to commons were not as complete by the act of 1812 as the rights and titles of claimants to town lots, &c. The Supreme Court of the United States, in Le Bois v. Brammel, 4 How. 457, speaking of the act of 1812, in reference to the St. Louis commons, observes: “ That this was a general confirmation of the common to the town as a community, no one has ever doubted, so far as the confirmation operated on the lands of the United States.” And the learned Judge who delivered the opinion of this court in Caron — 462 — delet v. McPherson, 20 Mo. 201, remarked that, “ according to the decisions of the Supreme court of the United States, the act of 1812 confirmed the lots to individuals, and the commons to the towns, without regard to the question whether there had or had not been a previous survey, and the boundaries of the claims thus confirmed were left open for proof in any litigation that might arise.” But the first proposition we are considering was directly before this court, and decided in the case of Carondelet v. McPherson. The case trxrned on the propriety of an instruction which asserted that the claim of the plaintiff could not be sustained without a survey which included the property in dispute. The instruction was declared erroneous, and it was held that the plaintiff’s title to common might be established, without a survey, by proof of user prior to December 20, 1803. The only difference between the two cases is, that in this case both parties claimed under the same act, and the plaintiff was met by an approved and accepted survey of the St. Louis common, and this leads us to consider the second proposition. The United States surveys of the commons of St. Louis and Carondelet are no doubt prima facie evidence of the extent and boundaries of the respective commons of said towns, and, when approved by the United States and accepted by the parties for whom they were made, were conclusive on the United States and the towns respectively, and all persons claiming subsequently to the grant under them or either of them. When a claim is not confirmed according to ascertained boundaries, but the confirmation is coupled with the condition that the land shall be surveyed, the confirmee can not controvert the survey that locates the claim. (Standford v. Taylor, 18 How. 412.) But it is settled that confirmations under the act of 1812 were legislative grants without any conditions annexed, and that the act was operative to pass the title without any thing further being done by the United States. If so, neither the government, nor any department, nor officer under it, could impair the grant by an — 463 — improper survey or otherwise. When, however, the survey of the St. Louis common was made and approved by the United States and accepted by the defendant, it was conclusive on the parties to it, for, as they agreed to it, they are bound by by it; but other claimants to land within its boundaries, who were not parties to it, were not concluded, and could controvert it so far as their claims were affected by it. (Menard v. Massey, 8 How. 314.) In the City of St. Louis v. Toney, 21 Mo. 243, a private claimant under the act of 1812, whose land was covered by the survey of the commons, was allowed to dispute its correctness, and to recover against the commons’ title, without having complied with the act of 1824, upon proof of inhabitation and cultivation prior to December 20th, 1803. So also in Vasquez v. Ewing, 24 Mo. 31, this court decided that though the Supreme Court of the United States, in Le Bois v. Brammel, had established the doctrine that the approved survey of the St. Louis common, confirmed by the act of 1812, was equivalent to a patent, and that the title was as perfect from the government as could be obtained, and could not be assailed by the government nor any one claiming under it subsequently to the confirmation of the common, yet a private claimant within the boundaries of the survey, and asserting title under the same act of confirmation, might prevail against a person claiming under the city, upon actual proof of such facts as would bring him within terms of the first section of the act of 1812. The first section of the act that confirmed the “ rights, titles and claims to town or village lots, and lots and common field lots,” in the same breath and in the same words confirmed the titles and claims to the “ commons in, adjoining and belonging to the several towns or villages” named'in it. No distinction is made between the claimants of the different kinds of property designated in the act; and if the claimants of town village lots, out-lots, or common field lots can recover or without surveys, and are not concluded by surveys made for other claimants, no reason is perceived why a different rule should be applied to the claimants of common. If one can — 464 — maintain ejectment without a survey, the other can; and if one is not concluded by a survey to which he has not assented, and to which he was not a party, the other ought not to be. Both are vitalized by the same power and are subject to the same conditions. The confirmation to each was a grant by legislation which carried the fee, and was superior to the dignity of a patent (Grignon’s Lessee v. Astor, 2 How. 344) ; and to the extent of impairing the rights which the act conferred the power of the government was exhausted, and they were sacred from the improper interference of the highest executive officer, the head of a department, or any subordinate officer or agent; “ but the boundaries of the claims thus confirmed were designedly, as we suppose, left open to the settlement of the respective claimants by litigation in the courts of justice.” (Mackey v. Dillon, 4 How. 446.) In our opinion the plaintiff might recover without a survey ; was not concluded by the defendant’s survey, nor by the survey of 1834, if it was not approved by the United States or assented to by the plaintiff, as showing the extent and boundaries of the Carondelet common. If, however, the survey of 1834 was approved, it would be prima facie evidence of the true location and boundaries of the Carondelet common, and the plaintiff could not recover without showing that it was incorrect and had never been recognized or accepted. No formal act is necessary to constitute an acceptance, but it may be inferred from a variety of acts and circumstances; and though the acts of the party going to show that the survey had been accepted must be proven as facts to the jury, it will be the province of the court to declare, as a matter of law, the legal effect of particular, acts bearing on the question. Judge Napton concurring, the judgment will be reversed, and the cause remanded. Scott, Judge. As only part of the claim of Carondelet for commons is presented by this record as it appears, I am not willing to express an opinion as to whether Carondelet can, on her bare confirmation alone, maintain an ejectment. There — 465 — is no doubt the act of 1812 conferred title, but to wliat lands is a matter for judicial determination. It is for the courts to say whether a claim, although it has been confirmed, has that degree of definiteness which entitles it to be submitted to the jury. As the case now stands, I am not prepared to say that Oarondelet would not be entitled to recover.