6 Mo. 510 | Mo. | 1840
Opinion of the Court by
This was an action of ejectment, for 800 arpens of land, lying in the county of St. Charles. Judgment being against the plaintiff below, he appeals to this court.
The circuit court found a special verdict, which sets out the following facts:
In the year 1806, Edward Hempstead, as agent for the inhabitants of Ihe town of St. Charles, filed a notice with the recorder of land titles of the claim of the inhabitants of said town to fourteen thousand arpens of land, as commons, which notice was recorded. This notice setforth their claim, as under a concession from Don Zenon Trudeau in 1797, and from Charles Dehault Delassus in 1801 and 1804.
With this notice Mr. Hempstead filed and had recorded sundry documents:
1. A petition from Charles Tayon, dated 11th January, 1797,'to the Lieut. Governor Trudeau for a tract of land fronting on the crooked swamp in the low prairie, and extending to .the Missouri, adjoining on one' side to Antoine Janis, and on the other side to lands not heretofore granted.
2. An answer of said Trudeau, which states that said land petitioned for “being in the vicinity of the village of St-Charles, and of various farms in the prairie of its dependency which would have to go a great deal further to procure wood, said tract shall remain, as well as all others adjoining either in ascending or descending the Missouri, and which have been asked by sundry persons addressed to us by Mr. Tayon, to the Royal Domain, and for the common use of the said village of St. Charles, and for the lands already granted in the prairie, and to be granted hereafter; all which Mr. Tayon shall make known to the inhabitants, and espe- , eially to those who have asked for land and whose petitions
3. The proceedings of the villagers of St. Charles, at a solemn meeting at their government house, in which they resolve to enlarge their commons, and they fix the boundaries. Having determined this matter, it was further agreed, that it was proper that the result of their deliberations should be communicated to the Lieut. Governor, and that he be supplicated to preserve to the said inhabitants of St. Charles •of Missouri, their upper and lower commons, in their whole and entire state, and they will bind themselves to enclose the same as they have done heretofore.” This paper was signed by all the inhabitants.
4. The answer of Charles Dehault Delassus, the then Lieu. Governor, is as follows: “St. Louis of Illinois, 26th February, 1801. All concessions and augmentations of property must be granted by the intendant of these provinces, on a petition, which is to be presented by those persons claiming lands; but if the common of the inhabitants of St. Charles is not sufficient for their cultivation, we do permit them provisionally to enlarge the same according to their wishes, without insuring to them the right of property, which they are to apply for as above mentioned, and the provisional lines of the said augmentation shall be drawn by Captain Antoine Soulard, Surveyor of Upper Louisiana, who is the only person authorized to survey under our orders. It being well understood that nothing shall be done to the prejudice of any person. Signed Carlos Dehault Delays us.”
5. A letter from Delassus; dajed 23rd Feb’y 1804, to Mr, Charles Tayon, commandant of the post of St. Charles, rebuking said Tayon sharply, for not communicating to hin: the petition of the villagers of the 27th April 1801, asking a survey .of the commons, and referring to his decree oí 26th Feb. 1S01, by which he says, “the augmentation therein mentioned is granted to them,” he proceeds to direct Mr Tayon to notify persons who have surveys made in the commons asked for, of his intention that the land should be granted as common, and ordering him to take the necessarj measures to have the whole surveyed according to his de
6. The petition of the villagers of St. Charles to the board of commissioners on land claims for Upper Louisiana, in which they ask a confirmation of 14000 arpens, and beg the board, if it should be thought that their powers did not extend to cases of this kind, to make the proper representations to Congress, to enable them to get a confirmation.— This petition is dated Feb. 3,1806. The certificate of the recorder is appended to these papers.
. 7. A plat of survey of the 14000 arpens, to which was the following certificate: “I Don Antoine Soulard, particular surveyor of the establishment of Upper Louisiana, certify that there was bounded, measured and-with the approbation, and in presence of Messieurs the Syndics of the town of St. Charles of Missouri, a majority of the inhabitants of said town assisting, the land which is designated on the preceding plat of survey, conformably to the petition which they made on the 18th January 1801, and to the decree of Mr. Lieu. Governor, which provides that they shall be put in possession provisionally by means of the plat and certificate thereof of the quantity of land necessary for a common of extent sufficient to answer the people of that establishment, and having calculated the extent, after having performed the operations, it resulted in containing 14000 arpens superficie, measured by the perch of the city of Paris of eighteen lineal feet in length of the same city, according to the field measure of this province, which land situated on the left shore of the river Missouri, and about twenty-one miles north west of this town of St. Louis is bounded as follows: (here follows the boundaries,) which is done in virtue of the decree of Mr. the Lieu. Governor, and sub-delegate of the royal domain, Don Carlos Dehault Delassus, of date 26th Feb’y 1801, and that all the matter above referred to may appear, I give the present with the preceding plat of suryey drawn in conformity with the labors periormed by the Lieu. Surveyor Don James Mackay of date of the 27th
The special verdict finds further, that certain proceedings were had on this claim before the board of commissioners, which proceedings are- set forth on the record. From these it appears that the testimony of some witnesses .was taken, which conduced to establish the importance of the said commons for the convenience of the villagers of St. Charles. It also appears that the claim was rejected by the commissioners. The verdict also finds certain documents to be correct translations of the original, extracted from the records of the recorder of land titles of the United States. These documents are, 1st. A petition from Isadoro Lacroix, a merchant of Michilimackinack, to Zenon Trudeau, Lieu. Governor, dated 17th January 1797. This petitioner prays for a concession of a lot near St. Charles and a piece of land at Marais Croché, where he desired to locate. Mr. Tayon writes, in relation to this petition, to the Lieu. Governor, that the lot asked by Lacroix was on the King’s domain, but that the land at Marais Croché “has been reserved for the use of the lands in the prairie of the jurisdiction of St. Charles.”
2. A petition from Don Antoine Gautier, to the Lieu. Governor, dated Nov. 29; 1796, praying a concession of land :at two places, one at a place called Clear Weather Swamp, ■ and another of ten arpens front on the borders of the same, ■running so as to join the Marais Croché. The Lieu. Governor Trudeau thereupon orders the surveyor, Antoine Sou-lard, to put said Gautier in possession. But an order of Don Antoine Soulard, dated 17 January 1803, appears, in ■which he states in consequence of expected difficulties between this petitioner and the inhabitants of St. Charles and Portage des Sioux, and in conformity to official instructions given him by Delassus, then Lieu. Governor, Don James
The court further finds a certain ordinance enacted by the corporation of St. Charles, providing for a conveyance to Gustavus A. Bird, and a conveyance made pursuant thereto. It is also found, that the premises mentioned in the declaration are within the limits of the St. Charles commons as surveyed by Mackay in 1804.
The special verdict also finds, that on the 15th day of December 1808, James Piper filed and recorded in the office of the recorder of land titles, a notice and affidavit, setting forth said Piper’s claim to 800 arpens, under a concession from Delassus, 14th May 1800, and cultivation in the years 1801,2 and 3, and avering that the notice of the said claim had been presented to the recorder Donaldson, about one month before the first board of commissoners commenced their session, and was rejected by said recorder, because no plat of survey accompanied the same. With the said notice and affidavit, said Piper filed and recorded a petition of Auguste Francis Giguare, praying for 800 arpens of land upon such part of the King’s domain as shall be most convenient to his interests, which petition was dated 12th May 1800, and filed and recorded a concession by the Lieu. Governor on 14th May 1800, conceding the petitioner the land he asked for, so that it prejudiced no one else, and ordering the surveyor to put the petitioner in possession of the quan
The board of commissioners rejected this claim in 1811. In 1813, the recorder of land titles, acting as commissioner, took up this claim, and proof was made to him that some improvements were made on this tract in 1803, and in 1815 this claim was reported by said recorder for confirmation.
It is found, that on the 4th of December 1804, Francis Giguare was not 25 years old, but probably about 19—that thirty-five years since, one Durocher lived upon the land in dispute, and after his death Louis Barada lived there, and after Louis Barada died, Antoine Barada lived upon'the land until he was turned out by Matthew Kerr, about two years since—that for the last thirty-five years, James Piper has not lived on said land, but lived about two, (or ten) miles from the land, towards Portage des Sioux, where he lived until his death. The court found, that Louis Barada took possession of said land, having purchased a claim to it under said Durocher, saying he considered it belonging to the commons of St. Charles, but he would risk it; and Antoine Ba-rada, whilst he possessed said land, said it belonged to the commons. The land was surveyed for the first time in 1830.
On this state of facts, the circuit court gave judgment for defendant.
Before enquiring into the legal effect of these documents, it is proper to notice an objection raised to the sufficiency of the special verdict. The court have found that Mr. Hempstead, as agent for the inhabitants of St. Charles, filed sundry documents in the office of the recoi’der of land titles, which documents are not declared to be genuine, but are merely set forth on the record. The act of Feb. 1, 1839, concerning evidence, provides, “that all grants and concessions of land, all warrants, orders, plats and certificates of survey, made and signed by the proper officer of the French or Spanish government, which shall have been filed in the
The record presents two separate claims of title, first the title of plaintiff under the inhabitants of St. Charles, and second, plaintiff’s title under Francis Giguare.
We will consider the title of the commons first. It ap* peáis, then, that in 1796 and 1797, various persons petitioned the Lieu. Governor Trudeau, for concession of land in the neighbourhood of St. Charles, and these petitions were all refused, on the ground that the Lieu. Governor intended an indefinite quantity of land in that neighborhood should be reserved for the use of the villagers of St. Charles and its dependencies in the prairie. It appears also that the inhabitants of St. Charles in 1801, in solemn meeting, resolved on enlai-ging their commons, and fixed upon the limits of the commons so enlarged, and petitioned Delassus, the then Lieu. Governor, for a concession of the entire commons. Delas-sus in his answer to this petition, makes a provisional grant, not pretending to assure them the right of property, which he declares in his decree is only in the power of the inten-dant of the provinces. He also directs the surveyor of the
The act of -the I3th of June 1812, declares that 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 or villages of Portage des Sioux, St. Charles &c. which lots have been inhabited, cultivated, or possessed prior to the 20th day of December 1803, shall be and the same are hereby confirmed to the inhabitants of the respective towns or villages aforesaid, according their seve. ral rights in common thereto.”
The only question is whether this act confirmed the claim of the inhabitants of St. Charles to a common of 14000 arjens, and would enable them, and all holding under them, to maintain an ejectment on such title.
It is insisted by the defendant, that the act of 1812 operated to confirm the titles of claimants only where there was a grant from the Spanish Government, or such long use and enjoyments of a specific-quantity of land as would amount to a grant. This position is believed to be correct. But if it is intended by the word ‘grant’ to exclude all inchoate titles, and such concessions as were made by the representative of the Spanish government, and which did not purport to convey all the proprietary rights of the crown, the doctrine appears to be entirely untenable. If the grant from the King of Spain in this case, to the inhabitants of St. Charles, or in any other case, was a complete grant and parted with all his ownership, the rights of the commoners or the rights of au individual, under such a grant, would have been completely protected by the Treaty of 1803 between this Government and France, and no act of Congress would have been necessary to give validity to such claims. The act of 1812 speaks of claims rights and titles, and the object of that act was to divest the United States of all ownership or claim to such property as comes within its provisions. In this case, there was not only a claim to an indefinite quantity of land as far back as 1796, and which was recognized
The objection to the want of a sufficient use?-- of these commons, does not arise when there has been a concession,, and if such an objection could arise, íhere-is, I think, ample, evidence on this record of the use?- established in 1776 and. thenceforward®, was of an indefinite quantity of land, and! if no subsequent acts of the inhabitants and of the Svanish government had reduced the claim to any more certainty than all the land “up and down the Missouri river,” the user, might not have been available any farther than particular limits could have been established by competent evidence,, Butin 1801 the claim and the user were reduced to certainty by a petition, containing a s, ecúl description by metes and bounds, and a consequent survey in 1804.
On this head, the defendant assumes two positions. First, .that the .right of common, as it existed under the Spanish government, was an incorporeal right, distinct from the fee, and if claimed in this shape will not sustain an action oí ejectment. 'And second, that if claimed-under the act of 1812, as a grant from the United States, its character must be determined by the common law, which clearly could not
It is needless, however, to enter into any minute inquiry,, in relation to the exact nature of the ownership of the commoners, under the Spanish Government. Whether corporeal or incorporeal, it was absolute and allodial; and no fee, according to the feudal understanding of that term, was outstanding in the King or any one else. This is upon the sup
If then, under the King of Spain, the rights of the commoners were purely incorporeal, they unite under this government, to that intangible interest the absolute proprietor- . ship, ceded by the United States.
The arguments tojestablish that these commons are inalienable, even by the commoners, I apprehend, are founded on this supposed intangible nature of the right. If the positions which I have advanced be correct, the foundation up' on which these arguments are based, is gone. Indeed the whole argument seems at variance with the spirit of our laws, and contrary to the genius of our political institutions. The general spirit and tendency of our government and laws, no judicial tribunal is at liberty entirely to disregard. A construction which tends to perpetuities, will not be fa-voured. Whilst every thing else is progressive, whilst our most solemn political charters may be altered or abolished by the power which created them, and one generation is denied the power of binding its successors, shall a few French villagers be compelled to stand still in the march of improvement, and abide by a system of customs, which experience and necessity and more enlightened views have taught them to disregard?
It is the opinion of the court, that the legislation of this State may provide the ways and means, by which the inhah itants of St. Charles may dispose of this property. Whether they have done so, in this instance, and whether the law, if such an one exists, has been complied with; is immaterial in this case. The admissions on the record preclud* jhe defendant from questioning the conveyances from the inhabitants of St. Charles to Bird.
The judgment of the circuit court is reversed, and the clerk will enter up judgment for the plaintiff.