9 Mo. 343 | Mo. | 1845
delivered the opinion of the court.
Felix Coonce, the defendant in error, brought an action of ejectment to recover a lot in the town of St. Charles, against Biehler, Grater Sc McIntosh, and Emilie Chauvin, administratrix of F. D. Chauvin, deceased, was admitted to defend the suit. The lot was described in the declaration, as 240 feet French measure in front, by 300 feet in depth, bounded on the west by Main street, on the north by McDonough street, on the south by Chauncy street, and on the east by the sand bar of the Missouri river. A trial was had in the St. Charles circuit court in 1839, and a verdict for the plaintiff for 79 feet 3 inches on Main street, running with that breadth to the river. Upon the application of the defendant below, a new trial was granted, and a similar verdict was again found upon the second trial, upon which the court gave judgment.
The plaintiff, to support his claim, gave in evidence a certificate from the Recorder of land titles, Theodore Hunt, dated 7th May, 1825,
4nother witness on the part of the plaintiff, testified in relation to Evan’s survey, and sated that no street or road had ever been used within his knowledge, (and he came to St. Charles in 1809,) at the place where McDonough street is claimed to be by the plaintiff; but that the plat of Evans had always been referred to by the board of trustees, (of which he had been twice a member,) whenever the position of the streets, &c., of St. Charles was desired to be ascertained.
The defendant offered in evidence a copy of an extract from the registry of confirmations by the Recorder of land titles, being a confirmation to Charles Tayon, on the 6th April, 1825, of a lot in the town of St. Charles, bounded on the south by McDonough street, west by Main street, north by Water street, and east by the Missouri River, 240 feet front. This certified .copy was rejected. Copies of deeds from Tayon to W. J. Devore, and from Devore to D. McNair, and from McNair to Chauvin, were also offered in evidence, but rejected.
The defendant proved by Thomas Gilmore, that as far back as 1801, Charles Tayon lived on the premises now claimed by Coonce’s representatives ; that his enclosure reached within a few yards, of the branch called Blanchette, and between it and the branch there was a road used to go down to the river, the ferry landing being immediately east of Tayon’s house; that this enclosure of Tayon, which embraced his dwelling house and several out-houses, garden, &c., extends nearly to the spring branch on the northern extremity of his lot; that the buildings and improvements at that time appeared to be old ; that said Tayon claimed and occupied said premises as his own; and when the old pickets which separated his enclosure from the road going to the ferry, became decayed, he built a new fence on the same line. Witness knew of no street or road passing through this lot, and never heard any spoken of. Witness knew Coonce’s lot, and was once offered it by Coonce, who was about to sell it, in consequence of ill health. Coonce had no improvements on it., except a mill and hay shed, and he was told by Coonce that his mill was on the lower edge of his lot. Witness
Another witness testified that he had known the lot for forty years ; that when he first knew it, it was claimed and occupied by Charles Tayon; that his enclosure extended from very near the branch Blanchette to the spring branch on the north. In relation to Coonce’s lot, he testified about the same as the other witness; that his improvements did not extend north of the Blanchette branch; and that he never heard him claim any ground north of that branch, or dispute Tayon’s claim. ? Much other testimony was given to the same purpose. The defendant asked the court to instruct the jury, that in order to prove that any part of the premises possessed by the defendants was south of McDon-ough street, as claimed by the plaintiff, the plaintiff must prove that such a street has been established by some lawful authority, or that a street had been recognized at the place where the plaintiff now claims McDonough street, by long usage or public notoriety. This instruction the court refused to give, but stated to the jury that it might be a street merely in contemplation. The plaintiff then moved the court to instruct the jury that no evidence had been given to rebut the claims of John Coonee to the premises in controversy- The court refused to give said instruction, and stated as a reason therefor, in the presence of the jury, that by possibility some evidence of rebuttal might have been given, which has not been heard or recalled by the court. The defendant excepted to this declaration of the court, and afterwards moved for a new trial, which was refused.
The grounds upon which this judgment is sought to be reversed are, first, the exclusion of certain evidence offered by the defendants, and secondly, the instructions refused, and observations made by the judge in the presence of the jury.
The first question is one of no practical importance in the decision of this cause. For though the court excluded the copies of extracts from the books of the Recorder of land titles, showing that a lot of the description, size and boundaries claimed by the defendants had been duly confirmed under the act of 25th May, 1824, yet ample evidence was afterwards given that such a lot had been occupied, cultivated and possessed by Charles Tayon, previous to the 2d Dec. 1803, sufficient to bring him within the provisions of the act ,of 13th June, 1812. In the case of Janis’s adm’r vs. Gurno, whilst this court considered the. certificate issued under the act of 1824, as prima facia evidence of a confirmation under the act of 1S12, it was not regarded-as conclusive, and proof before the court of all the circumstances and facts necessary to
It seems from the testimony which we refer to, merely with a view to ascertain the propriety of the instructions, that Chas. Tayon inhabited, cultivated and possessed a lot in the town of St. Charles, as far back as 1801, and continued to inhabit, cultivate and possess the same until after the change of government; that John Coonce, from whom the plaintiff derives title, also occupied a lot adjoining, and subsequently in 1825, obtained a certificate from the Recorder of land titles for the said lot, under the act of the 13th June, 1812. It will also be seen, if we are at liberty to look into the evidence which the defendants before offered, but which was rejected, that each of these claimants had their claims allowed under the act of Congress of May 26, 1824, and the certificates issued to each, calling for McDonough street as the boundary between their lots.
The only matter in dispute between the parties is the locality of Mc-Donough street.
That this street never had been in actual use, appears from the testimony of the witnesses on both sides. That no public highway of any description ever passed where the plaintiff now claims McDonough street to be, and that none was ever supposed to pass there by either Tayon or Coonce, may be easily inferred from the testimony. Must it not then devolve on the plaintiff to justify an ejection of the defendants, from a possession of forty years standing; to show with some degree of certainty the locality of this street? It may have been as the circuit court observed to the jury, a street in contemplation, but it must have been so contemplated by some general plan of the town, which had at some period received the assent of the proprietors, or it must have been by virtue of some law, either of the former government or the present. All the French villages, it is well known, were laid out on some general plan, with streets and squares of a particular and known width. But it seems that the county surveyor, Mr. Cunningham, in acertaining the position of McDonough street, occasionally followed
We are not prepared to say that the instructions asked by the defendant should be given, at least, without an alteration of its language. It was couched in such general terms that it might be made to mean anything or nothing. The remarks made by the judge in refusing to give that instruction may also be correct enough, if properly understood, though it will admit of an interpretation calculated to mislead a jury. A street may certainly exist in contemplation: that is, it may have an existence, notwithstanding it has never been opened or used as a highway. . But where this is so, it must certainly be in consequence of some general plan of the town, either made according to law, or springing into use by the general consent of the inhabitants, and adopted and recognized as such. Was McDonough street in existence at the place claimed by the plaintilf, either by actual use or by its being called for by the general plan of the town in 1812, when Tayon’s lot was confirmed. It is not meant that the street must have been known by that name, for it is very unlikely that McDonough, Perry and Chaun-ey streets could have been known by these names at so early a day. The successes of these gallant naval officers having been mostly achieved, as history informs us, at a later period. The locality of the street, being as the record shows, on the outskirts of the village, must have been determined either by the fancy of the adjoining proprietors, according to the actual extent of the ground occupied by their buildings
The remark of the circuit judge in refusing to give the instruction asked by the plaintiff, we consider equivalent to giving an instruction. The jury look to the judge for an exposition of the law, and it is to be presumed, are also disposed to pay great deference to his opinions, either on the law or facts of the case. For the court to decline telling the jury that there was no evidence to rebut the claim of the plaintiff, but to accompany that refusal with the declaration that by possibility some evidence had been given which had not been heard, or if heard had escaped his memory, was certainly calculated to produce an impression exceedingly unfavorable to the defendants.
The judgment will be reversed, and the cause remanded for a new trial.