Fine v. Board of President of the St. Louis Public Schools

Wagner, Judge, delivered the opinion of the court. The plaintiffs in this case have had three verdicts ; it has been twice before in this court, and each time reversed and remanded, either because the court below rejected competent and legitimate testimony, or because improper instructions were given. Upon the last trial all the evidence was admitted by the court offered by the defendants, tending to support their view of the case, and it is not seriously contended that any evidence was admitted on behalf of plaintiffs which was illegal, or operated to defendants’ injury. Several points have been urged by defendants’ counsel for a reversal, but it is unnecessary to bestow any particular attention on them, as the essential merits of the whole controversy are involved in one question — that is, abandonment. [66] Upon this the parties must stand or fall. If Fine, the elder, abandoned the premises, so that they were susceptible of being reunited to the public domain according to the Spanish custom, then the assignment to the Public Schools in 1845 presents a title valid and incontestable. But if there was no abandonment, then the claims of the Public Schools must give way, and be held inferior to the prior claims. ' The act of June 13, 1812, (2 U. S. Stat. at large, 748) entitled “An act for the settlement of land claims in Missouri,” confirmed the rights, titles and claims to town or village lots, out-lots, common field lots and commons in, adjoining and belonging to the several towns and villages therein named, (including St. Louis,) which lots had been inhabited, cultivated or possessed prior to the 20th of December, 1803. And it has been uniformly held by both the courts of this State and of the United States that this act operated proprio vigore, and that when the facts of inhabitation, cultivation or possession were shown prior to December, 1803, they amounted to an absolute confirmation, without any evidence that the confirmee had received any grant, or survey, or permission to cultivate from the Spanish Government — Soulard v. Clark, 19 Mo. 570; Guitard v. Stoddard, 16 How. (U. S.) 494. Proof of inhabitation, cultivation or possession previous to 20th December, 1803, vests the title in the person adducing this evidence, subject to be destroyed by showing that the party abandoned the land and removed from it, with the intention that it should no longer be his. When this case was here before, the court said: “The Spanish law on the subject of abandonment declares that if a man be dissatisfied with his immovable estate and abandon it, immediately he departs from it corporeally, with an intention that it shall no longer be his, it will become the property of him who first enters thereon — 1 Partidas, Law, 50, p. 365. Abandonment is a question for the consideration of the jury, and depends upon the intention which is to be ascertained from circumstances — Fine v. Public Schools, 30 [67] Mo. 166; Landis v. Perkins, 12 Mo. 257; Barada v. Blumenthal, 20 Mo. 162. The question was again reviewed in this court in Clark v. Hammerle, 86 Mo. 520, and the doctrine of the above cases affirmed. Abandonment is thus merely a question of fact for the consideration of the jury, and if the court did not misdirect them their verdict must prevail. What is an out-lot, or common field lot, is for the court to decide, and the first instruction given for the plaintiffs presents a sufficiently correct designation, and appears to us unobjectionable. The second and third instructions given for plaintiffs, taken in connection with the first and second instructions given at the instance of the defendants, seem to embody the law fairly on the subject of abandonment. The remaining three instructions prayed for by defendants and given by the court, cast the onus of proof entirely on the plaintiffs of identifying the land and fixing the location of the boundaries, and, taken altogether as A whole, presented the law fully and correctly; and whether there was an inhabitation, cultivation or possession of this land by Fine prior to December, 1803, or whether he abandoned it so as to lose all right or title to it, were purely questions for the jury, and were properly submitted to them by the court. We see no error in refusing the instructions asked by the defendants numbered 1, 2, 3, 4 and 5. The first instruction was not supported by the evidence and was inapplicable to the case. The second related to the-subject of inhabitation, cultivation, possession and abandonment, and had previously been given at the instance of both parties. The third was erroneous, under the evidence in the case, showing a survi-vorship growing out of the marriage contract; nor is it law, according to the facts which must govern this case. The fourth instruction was wrong, because it singled out certain facts, and told the jury that, if they were true, they should find for the defendants, when there were other facts in the case bearing on the same subject. It amounted to a commentary on the evidence, giving particular facts undue [68] importance, and moreover asserted a proposition of law directly opposed to the doctrine laid down in Page v. Scheibel and Clarke v. Hammerle. The fifth instruction undertook to withdraw the whole case from the jury, which is never permissible when the plaintiff has given any testimony conducing to prove his allegations. United States survey 3333 to Louis Labeaume constitutes an interference in this tract, and includes within it some seven or eight arpents which originally belonged to the land now in controversy. On the trial plaintiffs disclaimed owning any right, title or interest within the survey 3333 to Labeaume, but the judgment was rendered for the whole land. The plaintiffs have now filed a remittitur in this court, remitting so much of the finding and verdict of the juiy in the court below as includes any part of the land embraced in the. United States survey No. 3333, and also remits all damages and monthly-values. This is objected to by defendants, and Fenwick v. Gill, 34 Mo. 194, cited as an authority in opposition to this practice. In that case the only reason assigned for refusing the motion was that if the court undertook to modify the judgment, it would be necessary also to apportion the damages and monthly value of the premises, and the record did not furnish any means of making a just and accurate apportionment. The same question cannot operate or have any controlling force in this case, for the damages and monthly value are remitted in tolo, and no apportionment becomes necessary. Where the judgment could not be rendered without the application of extrinsic facts, not furnished by the record, of course this court would not proceed to give judgment, but would remit the record to the lower courts for that purpose. But here the map which is made part of the record furnishes the requisite evidence, by which a correct judgment may be rendered, and we therefore see no reasonable ground for abstaining from such a course. The judgment of the Circuit Court will therefore be reversed, and judgment will be rendered in this court for the [69] three twenty-eighth parts of the land, the same as rendered in the judgment of the court below, except that part included in United States survey No. 3333 to Louis Labeaume. Judge Eagg concurs; Judge Holmes not sitting, having been of counsel.