29 Mo. 527 | Mo. | 1860
Lead Opinion
delivered the opinion of the court.
The question upon which this case turned in the Land Court we consider as virtually settled -by the previous decisions of this court, and fully supported by distinct enuncia-tions of the same principle, and a similar application of it by the Supreme Court of the United States.
In the case now under consideration this court said: “ If the surrey 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. (Carondelet v. St. Louis, 25 Mo. 464.)
In Menard v. Massey, 8 Howard, 314, it is declared that “ when the survey is made and the field notes returned to the surveyor general’s office, and the description and plat made out in form and approved by the surveyor general, it is conclusive evidence, as against the United States, that the land granted by the confirmation is the same described and bounded by the survey, unless an appeal is taken by either party or an opposing claimant to the commissioner of the General Land Office. This consideration depends on the fact that the claimant and the United States were parties to the selection of the land, for, as they agreed to the survey, they are mutally bound and respectively estopped by it.”
In Guitard v. Stoddard, 16 Howard, 512, Mr. Justice Campbell, in speaking of the importance of a survey, and in reference to a confirmation of a common field lot under the act of 1812, reiterates with approbation this language of Mr. Justice Catron in Menard v. Massey.
The position of this court in the case of the City of Carondelet v. The City of St. Louis, 25 Mo. 449, in relation to the
However this may be, we are clearly of opinion that it is for the court to say what acts will in law constitute an estop-pel ; and, aside from any mere verbal criticism upon the instructions of the Land Court and the order in which they are now found upon the record, they submit to the jury, substantially and seriatim, all the facts enumerated by the court in Carondelet v. McPherson, and almost in the language of that opinion, and declare that these facts, if they existed, constituted an acceptance of the survey.
Assuming, however, that these decisions are not binding upon us, or that they will admit of a different interpretation, and considering the question as an open one, our opinion in relation to the merits of this case is not changed. We are unable to perceive any thing startling or novel, much less the slightest appearance of injustice or harshness, in the application of this familiar doctrine of the common law concerning estoppel to the public surveys. On the contrary, its mere enunciation must commend itself to the sense of justice
A claimant of a specific tract of land, for the title to which, he depends entirely upon the government, applies to that government for a confirmation. His application is heard and granted, and, at his instance, the government, through its authorized agent, points out by a survey the exact tract which has been thus confirmed or granted. The claimant accepts the land thus designated, takes possession and disposes of it. Shall he be allowed after this to turn round and say his land, thus granted and surveyed, accepted and disposed of, was not at the place where the government had located it, but at another and different place ? Is there any principle of justice or natural reason which would tolerate such a course'? On the contrary, is it not in conformity to common sense, as well as common right, that the party — who has thus declared, by the most deliberate and solemn action of which the subject matter admitted, that his confirmation was at the. place where the government had located it — should not be allowed afterwards to deny it, however false may have been the original assertion ? The common law doctrine of estop-pel is not a technical one, nor is it an inflexible iron rule confining itself to a given state of facts, but a principle of justice and public policy, adapting itself to varying circumstances. It is merely an admission, made in a form so deliberate and so solemn, either by record, by deed, or by act, as that public policy will not permit it to be contradicted. We see no impropriety in applying it to the peculiar condition of things, which has sprung up here in reference to Spanish grants and United States confirmations and surveys. That it is just and equitable no one will deny; that it is in conformity to the spirit of the laws of the United States upon this subject, interpreted as they have been by the highest tribunal authorized to pass upon these laws, is manifested by what has already fallen from that court, and it is only upon the most technical grounds that the doctrine is objected to.
That the estoppel must be mutual in order to be binding
If the exclusion of the 1702 acres of land from Brown’s survey for a military reservation had been made without the consent of Carondelet, and was a valid exclusion within the power of the government at the time it was done, we should of course concur in the views urged by the counsel for Ca-rondelet in this case. In that event, the government of the United States not being bound by the survey, neither were the inhabitants of Carondelet, however much they may have insisted upon its validity, and whatever action they may have taken in reference to it. But we have in the record two ordinances of the city of Carondelet, and a deed of conveyance, giving undoubted proof of the consent of Carondelet to this reservation.
The existence of valid claims within the limits of the survey of Brown would of course form no objection to the estop-pel either on one side or the other.. The survey was not binding on third persons. Neither the government nor Ca-rondelet could affect the title of adverse claimants by any agreement of theirs to a survey.
It has been urged in this case that, as the corporate authorities of Carondelet had not any power in 1834, or previous to 1851, to sell this land in fee simple, they could not, therefore, at the date of this survey, by any consent or acts of formal acceptance, part with their title to any portion of their common, outside of Brown’s survey, confirmed by the act of 1812, upon user alone.
The titles, which have sprung up here, based upon inchoate claims originating under another government, and especially those concerning the commons attached by law and usages to certain ancient villages, have occasioned much legislation on the part of the federal government and on the part of the
We do not mean by these remarks to admit that the conclusion arrived at in this case is inconsistent with any principle of either the common law, or the law of Spain under which this property in commons originated. All we mean to say is, that the titles growing out of this peculiar property, now based upon laws of the United States and of this state, and upon judicial interpretations of those laws, must be governed mainly by reference to these laws and decisions.
The question on the trial of this case was not, whether in 1834, the date of Brown’s survey, Carondelet had any power to dispose of her commons in fee simple, but whether, either then, or at any time anterior to the trial, her acts in relation to this property amounted to an acceptance of the survey and an appropriation of the land within its limits as her common. Conceding that the corporate authorities of Caronde-let possessed no power of making a fee simple title to these lands in 1834, and that her leases in 1838, for ninety-nine years, renewable at the pleasure of the lessee, are distinguishable from an absolute disposition of the common — although the difference for all practical purposes may be quite inappreciable — yet in 1851 her charter gave her an absolute con
The history of this controversy, as exhibited on this record, shows that the authorities of Carondelet always acquiesced in the survey of their commons so long as the government of the United States showed a disposition to respect it. Previous to the survey, it is true, some of the authorities of Carondelet, and probably some of the inhabitants who had no authority, remonstrated most earnestly, and perhaps justly, against Brown’s survey of the St. Louis common, which, as they alleged, encroached upon their common on the north. But when Brown’s survey of their common was made, embracing as it did several thousand acres more than their original claim in quantity called for, no further complaint was made, at least to the government, and it was not until the officers of the government commenced efforts to overturn this survey that Carondelet sent up her remonstrances to Washington. The controversy was then kept up; but as the government finally acquiesced in the survey, and the original approval of the surveyor general was allowed to stand, the.same rule should apply to Carondelet, and both parties be held equally bound.
It is hardly necessary to add — what has already been distinctly declared by this court in the case of Carondelet v.
Dissenting Opinion
dissenting. .1 am in favor of reversing this judgment on account of the instruction given by the court below. For my views on this subject see the opinion filed by me in the case of Dent v. Sigerson, decided at the present term of the court.