21 Mo. 243 | Mo. | 1855
delivered the opinion of the court.
The principal question involved in this controversy has, during its pendency, been determined by the Supreme Court of the United States, in the case of Guitard et al., v. Stoddard, (16 Howard, 494.) That case settled that a confirmation by the act of the 13th June,-1812, was absolute, depending only on the fact of inhabitation, cultivation or possession prior to
The main question in the cause having been determined by that tribunal, whose judgments in matters involving the construction of the laws of the United States are conclusive, we will proceed to examine some other points presented to our consideration, necessary to a final determination of this controversy.
The case above referred to disposes of the 1st, 2d, 3d, 4th and 15th instructions aslced by the plaintiff and refused, and the others will be reviewed in their numerical order.
There was no error in refusing the fifth instruction, because it contains no reference to the act of 27th January, 1831, along with the other acts mentioned, without the aid of which it is conceived that the city cannot maintain a suit for the common. (Les Bois v. Bramell, 4 Howard, 469.)
Instruction numbered six was properly refused, as it maintained that a confirmation and survey under the act of 1812, was a better title than a confirmation under the same act, with proof of inhabitation, cultivation or possession, which is contrary to the doctrine asserted in the case of Guitard v. Stoddard, above referred to.
The seventh instruction, in relation to survey No. 3182, which was a survey of the Motard claim, as confirmed by the act of July 4, 1836, was too general in its language, as the effect of it was to deprive that survey of all validity whatever, taken disconnected with the act of July 4th, 1836. Whereas, it is conceived that that survey is evidence of the locality of the
Complaint is made for the refusal of the eighth instruction, as it contained a correct legal proposition and was relevant. The case as made by the instructions given for the defendant did not turn on any title derived under the act of July 4, 1836, but rested for its validity on the act of 1812, and the proof of the facts thereby required. The refusal, therefore, of the court to grant it would not be apt to affect injuriously the rights of the plaintiff. But this is no answer to the objection. The first proposition contained in that instruction was undoubtedly the law as established by the decisions of the Supreme Court of the United States in the cases of Mackay v. Dillon, and Les Bois v. Bramell, (4 Howard, 421 and 449.) These cases fully maintain that a confirmation and survey of the commons, under the acts of 1812 and 1824, is a superior title to any derived by confirmation and survey under the act of July 4, 1836. The last clause of the instruction under exam
The ninth, tenth, eleventh and twelfth instructions required the court to declare, as law, that the claimant, under the act of 1812, must be the same person who cultivated the lot prior to the 20th December, 1803 ; that the act of 1812 is only available to those who continued to retain their claims arising under the Spanish government, until the date of its passage. It is clear that, if a claim was abandoned, it had no existence at the date of the act, and could not, therefore, be confirmed. But it is conceived that a claim, whether it was transferred before or after the change of government, was not affected by any disposition made of it. If the inchoate right, commencing under the Spanish government, continued in existence until the act of 1812, it was confirmed without regard to the number of alienations to which it had been subjected, and enured to him who was entitled to it, whether he claimed by purchase or descent. The confirmation was to the original claimant or his legal representatives, without regard to the date of the alienation. This, it is believed, has been the uniform interpretation of the act. The construction contended for by the plaintiff would leave most of the claims in existence at the date of the act unconfirmed.
The thirteenth and fourteenth instructions relate to the statute of limitations, about which there is no controversy.
The subject of the sixteenth instruction will be considered in connection with the instructions given for the defendant.
The seventeenth instruction is in these words : “ The act of congress of the 13th June, 1812, confirmed only so much land as was inhabited, cultivated or possessed by the claimant prior
The eighteenth instruction relates to the affidavits of witnesses, as contained in the copies of the proceedings of the board of commissioners, and of the recorder of land titles, read in evidence, and asks that the jury be directed that they are not evidence in this case of the facts therein stated. The plaintiff read a portion of these depositions, on her part, without objection. That must have been done with some view. They must have been regarded as evidence for some purpose. It is clear that they were not evidence for the purpose of establishing the fact of inhabitation, cultivation or possession, as required by the act of 1812, on the part of the defendant, and should not. have been listened to by the jury for any such purpose. But. the instruction is not thus limited in its operation. In its-scope, it would deprive the affidavits of all efficacy for any pur
The instructions given at the instance of the defendant, defining an out-lot within the meaning of the act of 1812, are complained of as not being in conformity to law. It is main-stained that an out-lot, within the terms of the act, must be both adjoining and belonging to the town or village of which it is an appurtenant; or, if not so, it must at least be shown to be adjoining the town, or a civil dependency appurtenant to it. It has been said that the question as to what is an out-lot, is a mixed question of law and fact. But it appears to me, that .-subject to the control in granting a new trial, it is mainly a • question for a jury. No court, by a prospective definition, can embrace all the lots which would come under the class of “ out-dots.” Bach lot must depend on the evidence in relation to it, In order to its classification. It is obvious that it is not necessary that a lot should touch the town to make it an out-lot. If it is adjacent to the common fields, it is near the town, as the (Common fields must, in the words of the act, be adjoining and belonging- to the town. That the lot was cultivated by an inhabitant of the town, is some evidence of its dependence, or of its belonging to it. The fact that the claimant must be an inhabitant of the town, in order to be entitled to a confirmation, does not deprive this circumstance of its weight, in showing that