11 Mo. 247 | Mo. | 1848
In the cas3 of Trotter against the Public Schools of St. Louis, I assented to the affirmance of the judgment of the inferior court, because it appeared to ms then that all the lands not rightfully claimed by individuals or held as commons, included in the out boundary of the general survey directed by the first section of the act of 13th June, 1812, were reserved for the use of schools. It seemed to me that the survey contemplated by the act was the only mode of ascertaining the lands that were reserved. The question was one abounding in difficulties, and an .accurate knowledge of the extent of the town of St. Louis and the quantity of land not owned by individuals nor held as commons included in the survey, were necessary in order to arrive at a just conclusion as to the extent of the reservation intended by the act of Congress.
The question in this case involved was at one time of little importance, and by timely legislation might have been put at rest at an inconsiderable sacrifice. But delays have been interposed, time has rolled on, and St. Louis has become a wealthy, populous and rapidly increasing city, in which real estate has increased in value greatly beyond the most sanguine expectations of its early inhabitants. Many have invested their all in the purchase and improvement of lots. These considerations should admonish courts to listen v/ith caution to the complaints of those who have long^delayed the assertion of their rights. The utility and benevolence of the objects of a claim can have no influence in determining its justice. In a government of laws, it cannot be expedient to sacrifice the rights of the humblest individual of the Community for any purpose however grand or benevolent.
There are two parties claiming the same parcel of land under thé government of the United States. One claimant asserts that the land was first given to him, therefore the other can have no right to it. It is obvious that this argument is a petitio principii, or a begging of the question. The very matter in dispute is whether the land was ever given to him who asserts the prior right. In determining this question, it is necessary to inquire on what principle' the general survey of the town is made prima facie evidence of the right of one party against the other. That it is an official act, and properly authenticated, are not surely the only requisites to make a document evidence in a cause. If, in a controversy between the plaintiff in this action and the General Government or any other party, it had been determined by the highest tribunal known to the constitution and laws of the United States that the land in contro
If then, in controversies between the St. Louis Public Schools and individuals, relative to lots reserved under the act of 1812 for their use, the survey is not prima facie evidence of title in them, it follows, that in such controversies it is a matter of indifference to those claiming adversely to the schools what extent is given to the out boundary of th® town, or in what manner its lines are run; it may be made ce-extensive with the limits of the State so far as they are interested, as the act of the officer cannot affect their rights and as it is a matter which concerns the general government alone.
The survey then being thrown out of the question, nothing is left t© ascertain the extent of the reservation made by the act of 1812, but the words of the act. If Congress intended that all vacant lands within the out boundary of the town should be reserved, the donation was a vague -me. It was limited to the l-2Dth of the contents of the survey which was directed to be made. No two surveyors would make the survey in the same manner, let one of them be unacquainted how it was made by the other. I do not .say that after a survey has been made, you may not
In passing the act of 1812, Congress looked at the French towns and' Tillages in the then Territory of Louisiana, as they were prior to the 20th December, 1803. If a lot had not been prior to that date rightfully claimed by reason of inhabitation, cultivation or possession, and if rightfully claimed, had been abandoned, the occupation of it in the interval between 1803 and 1812, would have conferred no title on its possessor. It would have been reserved. In order to be reserved, a lot must not have been occupied, cultivated or possessed, or if so, abandoned prior to the 20th December, 1803. That was the day on which the French auuthorities at New Orleans delivered possession of the Territory of Louisiana to the American Government. After that period, it is not pretended that there was any authority in any American tribunal or officer to grant lots in any town or village to its inhabitants. Under the Spanish Government a settlement could only be made on the royal domain with the consent of the proper officer. Intruders were expelled. Regulations existed prescribing the manner of laying off towns, disposing of the lots and granting commons and common field lots. Strother vs. Lucas, 12 Peters.
The term “out lot” used in the act of 1812, it seems, was not known to the early inhabitants of St. Louis. But St. Louis is only one of the to wns mentioned in that act. The term was known and understood at Ste. Genevieve-, one of the enumerated villages, and Ste. Genevieve at the date of the act, vied in importance with St. Louis and consequently was as apt to- be in the mind of the legislator as that city.
Congress was expressly informed that there would be vacancies and “vacant spots” in the general survey, yet they were not in terms reserved. In the construction of a private act of the Legislature, which is nothing more, than a grant, we may look at the information before the legislator and the circumstances under which it was passed, in order to enable us to ascertain its meaning.
As Congress intended by the second section of the act of 1812, to re-»
Does not the phraseology of the latter part of the second section of the act of 1812, favor the construction I have put upon that act?
If all the vacant lands included in the general survey were reserved, why should it have been enacted, that the whole quantity of land contained in the lots reserved, should not exceed l-20th part of the whole lands included in the survey? If the entire quantity of vacant land was intended to be reserved, why not have said, that the quantity of vacant land included in the survey should not exceed l-20th of its contents?
For these reasons I am of opinion that the reservation made by the act of 1812, included only lots in the sense in which they were understood in the towns and villages enumerated in the act, and that what is a lot is a mixed question of law and fact to be ascertained by a jury under the directions of the court.
As to the constitutional question concerning the power of the Legislature of Missouri to divert the bounty of Congress from its original subjects by the act incorporating the plaintiffs, it may be remarked that there is nothing in the record on which it can be predicated. There is no evidence of the diversion of the bcunty of Congress from those for whom it was designed. If the act of the 13th February, 1833, incorporating the plaintiffs, is relied on for that purpose,'I do not conceive that it contains any such evidence. Nor is the defect remedied by a reference to the act incorporating the city of St. Louis.
The objection to the jurors was a valid one. It is a clear principle that jurors must bo omni exceptions majares, free from, every objection and wholly disinterested. The inclination to relax the rule as to questions of interest as to witnesses, has never been manifested as to jurors. Although the Legislature has made the inhabitants of a county competent jurors in suits in which the county is a party, ithas not relaxed the rule as to corporations. A regard to convenience dictated this change in the law. The books are full that challenges are allowed when the issue concerns a corporation or city, and they are to make the pannel, Hobart, folio 87, a; 3 Bacon, 756.
The principal questions in this case relate to the survey of the town of St. Louis, made in 1840 by the Surveyor General, and purporting to be made under the provisions of the act of Congress of 13th June, 1812.— This survey was admitted as evidence by the Circuit Court, and held to be conclusive against the defendant.
My opinion is, that the survey is prima facie evidence, but not conclusive.
The act of Congress of June 13, 1812, made it the duty of the principal deputy surveyor, to survey or cause to be surveyed and marked (where the same had not already been done) the out boundary lines of the several towns and villages, enumerated in the act, so as to include the out lots, common field lots and commons, respectively, belonging to each town or village. It then declares that “all town or village lots, out lots, or common field lots, included in such surveys, not rightfully owned or claimed by any private individuals, or held as commons, belonging to such towns or villages, or that the President of the United States, may not think proper to reserve for military purposes” are reserved for schools, provided, the whole quantity so reserved does not exceed one twentieth part of the whole survey. This act gives no title to the schools, as was determined by this Court in Hammond’s case. It was a mere reservation on the part of Congress, of lots partly for the use of the public schools, and partly for military purposes, limiting the number of lots dedicated to the former object to one twentieth of the whole amount of land embraced in the general survey. The act of May 26, 1824, declared it the duty of the individual claimants under the act of 1812, to prove up their lots before the recorder, with a view to enable the Surveyor General to distinguish the public from the private lots. That act also enjoined the surveyor under the instruction of the Commissioner of the General Land Officer, to survey, designate and set a part to the towns and villages, so many of the vacant town or village lots, out lots and common field lots, for the support of schools, as the President may not have reserved, before the time fixed for the settlement of the private claims, for military purposes, and not to exceed the proportions fixed in the act of 1812. The recorder by this same act, was authorized to issue his certificate of confirmation to the individual claimants. The act of January 27, 1831, relinquished the title of the United States to the town and village lots, out lots, and common field lots, which had been reserved for the support of schools by the 2nd section of the act of 1812.
How could the public schools move a step until the government had ascertained the facts upon which their title depended? Could they claim any particular lot, before a survey of the out boundary was made? and before any lots had been designated and set a part — before it was ascertained how many lots the President might see fit to reserve for military purposes, and before it was known what proportion the reserved lots bore to the area of the whole survey? However, this may be, it is certain that the surveyor was expressly directed to run an out boundary line ; — that express provision was made for enabling him to distinguish the private from the public lots; that he was authorized and expressly directed to note this distinction, and to designate and set apart to the schools such vacant lots as were not selected for military purposes, provided they did not exceed one twentieth of the whole area embraced in the general survey. All this the surveyor has done under the direction of the Commissioner of the General Land Office, and these official acts? duly authenticated to the court, Í consider as evidence — prima facie evidence, that the acts are what they purport to be. Courts of justice will pay so much respect to the official acts of a ministerial or executive officer, as to presume in favor of their propriety, until the contrary is shown. It is a general rule of evidence, having exceptions undoubtedly, like most other general rules; but the present is not one of them.
By the act of 1824, to which we have heretofore alluded, the Recorder (an officer of the United States) was directed to issue certificates to the private claimants, and these certificates have been held prima facie evidence of title. Upon what principle shall we allow these certificates of the Recorder as prima facie evidence of title in the private claimants, and exclude the official act of the Surveyor General, upon whom the same law devolved the duty of pointing out and setting apart the lots designed for the public schools? The Recorder could not settle definitively the
His decision upon these questions is conclusive, because no one but the United States, whose agent he was, has any right or interest in disputing it. But he also decides, as he must necessarily do, that the lots designated are within the out boundary directed by the act of 1812; that they are village or town lots, out lots or common field lots, belonging to the village. Upon this question, his decision is not definitive, because be is not a judicial officer entrusted with the power of determining between conflicting claims. Yet I understand the survey to be presumptive evidence on this point also, because it is made by an officer, expressly authorized by law to perform the act, and it will be presumed to be correct, until the contrary is 'shown.
The survey then being admitted to make a prima facie case for the public schools, and the defendant having the right to dispute its correctness, it becomes material to settle the principles by which the propriety of the survey is to be tested.
I still think, as I expressed my opinion in the Trotter case, that Congress designed to dispose of every thing within the out boundary they directed; but as the out boundary was not to embrace any thing but the particulars enumerated, to-wit, the town or village lots, out lots and common field lots and commons, the propriety of including a specified
It is certainly intimated in the opinion in the case of Trotter, that the word out-lot might embrace tracts of land within the out boundary not known to the Spanish Government a's lots; but this idea, upon reflection, I must acknowledge to be inconsistent with the position assumed in that case and still adhered to, that village lots, out lots, common field lots and 'commons, should alone be comprehended within the outboundary. The same words are used to designate the lots confirmed to private claimants, as to describe those designed for reservation, and the language of the act must lead to the conclusion that the out boundary directed to be run should embrace nothing more than the Spanish- town or village, with its appurtenances. The practical difficulty in giving the act this construction, arises from the isolated and distinct position of several parcels of the enumerated classes of lots, in several of the villages mentioned, and particularly in St. Louis. This difficulty induced the belief that the word out-lot might have a signification sufficiently comprehensive to include any vacant ground necessarily comprehended by a single connected survey. The evidence now before the court, showing the position of the commons and common field lots, appertaining to other villages enumerated in the act of 1812, besides St. Louis, is. calculated to create great doubts as to the propriety of a single continuous out boundary. Where there are several detached parcels of common field lots, separated from the village and the commons by tracts of land, belonging either to the United States or to private persons, it is impossible to make a connected survey embracing the village and its appurtenances, without also taking in lands not coming within the description of either out lots or common field lots, and therefore not reserved for the public schools by the act of 1812. It would therefore seem to be more consonant to the spirit of the act, to make separate surveys of each parcel of lots, rather than to extend the meaning of the word out lot beyond that which it obviously bears when used with reference to the private claimants, so as to. authorize a general survey, including these tracts of ground, of irregular shapes and not recognized by the Spanish authorities as appurtenant or belonging to the town or village.
Much has been said in the discussion of all the cases before this court involving the rights of the present defendant in error, in relation to the proper meaning of the term out lot. This term, so indefinite in its general acceptation, must be construed in connexion with the subject matter in the view of.the legislature. Mere contiguity to the village, coupled
Whywere the common field lots regarded as a part of the village or as “belonging to” the village? They did not belong to the .inhabitants as a corporation, or to the mass of the villagers, as the commons did, but were owned by individuals; yet they were subject to the regulations of the village authorities, and this circumstance determined their character as out lots of the village. Officers were appointed, called Syndics, whose duty it was to see that the fence, which protected these lots from the incursions of the animals, should be properly kept in repair, and that each owner should do his share in this work. So I apprehend that if there were other out lots properly belonging to or rather appurtenant to the village, these lots fell within the control of these village authorities, to he exercised according to the laws and usages prevailing under the government of Spain in this country. This authority may not have been exercised over the out lots to the same extent or for the same purposes, that induced its exercise over the common field lots, but the fact, that the out lots fell within the same jurisdiction as the village lots themselves, was sufficient to indicate their character as appurtenant to the village.
It will appear by reference to the confirmations of Mr. Bates, whilst Recorder, that he uses the term out lots when referring to St. Louis, as mostly, if not entirely synonymous with common field lots. But there may have been other lots which would fall within the designation, as there undoubtedly were in some of the other villages enumerated in the act. This would be a question of fact for a jury to be determined under instructions from the court, explanatory of the characteristics of an out lot.
I can see no objection to receiving the survey made by the Surveyor General of the outer boundary line of St. Louis, under the instruction of the land department of the United States, as prima facie evidence of where that line should run. If a survey had been made in this case, by the county surveyor or any other individual under an order of the Circuit Court, it would be entitled to no greater verity. In each case, either party feeling aggrieved by the line run, would have a right to show, if such was really the case, that the surveyor had committed an error. Tim