50 Mo. 60 | Mo. | 1872
delivered the opinion of the court.
This was ejectment, commenced in September, 1853, in the St. Louis Land Court by plaintiffs, as commissioners appointed by
The defendants, by their answer, denied the plaintiffs’ right to bring the suit; admitted possession of so much of the premises as lay south of a line running easterly and westerly, and parallel with the south line of the Central or Olive street Plank road, and 150 feet distant therefrom, but claimed to be the owners thereof in fee, by virtue of confirmations and grants under the act of Congress of the 13th of June, 1812, and other acts therein referred to, and to have held possession thereof as such owners for more than twenty years before the commencement of this suit.
The trial was had in the St. Louis Circuit Court, and on the 7th of May, 1870, plaintiffs recovered a triangular parcel of 35.076 acres bounded south by survey 903, in the name of widow Camp, west by the west line of said section sixteen, and north by the south line of survey 1665, in the name of Louis Laroche. The whole of the land recovered lies within the St. Louis common field of the Grand Prairie, and includes portions of the common-field lots confirmed to the legal representatives of Yiuceiit Bouis, of Baptiste Riviere dit Baccanet, and of William Bizet. The defendants appealed to the general term, where the judgment of the court at special term was reversed, and from this judgment the plaintiffs appealed to this court.
On the trial the plaintiffs gave the following evidence in support of their title, to-wit: (1) The act of Congress of the 6th of March, 1820, for the admission of Missouri into the Union. (2) The ordinance of the 19th of July, 1820, declaring the assent of the people of Missouri to the said act of the 6th of March; 1820. (3) The act of the general assembly, approved the 3d of March, 1851, for the sale of section 16, township 45, range 7 east, found in Session Laws of 1851, p. 706. (4) The order of the County Court of St. Louis county, appointing plaintiffs commissioners to take possession of said section sixteen under said act of assembly. (5) A certified copy of the field-notes and plat of survey of section 16, township 45, range 7
The defendants then asked, and the court refused, the two following instructions, viz: 1. “If the court', sitting as a jury, finds from the evidence that the original defendant, Peter Lindell, was in actual possession of the premises sued for, from and after the year 1836 until the commencement of this suit, then the plaintiffs have shown no title or right to sue in this' action in their own names as commissioners of the sixteenth section.” 2. “There is no evidence before the court to show that these plaintiffs. have any right to recover in this action against those of the defendants who have answered in. this cause.” t
Robert Forsyth testified to the effect that he had lived in St. Louis since 1812; Lindell took possession in 1826 or 1827; he didn’t all at once, but occupied and inclosed different pieces every year; had a large tract inclosed in 1833; he inclosed portions of the Baccanet, Bouis and Provenchere tracts p>rior to 1837; Bouis was living on his tract; from 1835, down to the present, Lindell and his heirs had possession, by inclosure, from the center of Laroche tract down to Deschamp, Mullanphy’s inclosure.
Wm. H. Cozzens testified: Recollect, in 1836-7, an old inclosure around the Corneau Springs (describing it and its position); also Alexis Marie’s improvement; have seen the remains of Marie’s house; the north line of that old inclosure was the south line of the Laroche tract, which is the north line of the Vincent Bouis tract; this ancient inclosure included the Corneau spring, and extended a half arpen south of it; the remains of the old house are on the north part,' at the edge of the cultivation; found «the ancient stones on the east ends of these lots, being the east of the St. Louis common fields of the Grand Prairie ; the ancient French witnesses who were present showed me the east front line of these common fields, extending from Cass avenue down to the little “ run” of cul de sac, having Spanish landmarks and stones with iron dross under them; have found similar stones on the west line of the Grand Prairie common fields, which is parallel to the
Levin H. Baker testified: I am nephew of Peter Lindell, deceased; came here in 1881, and resided here ever since; have known the Lindell farm since 1831; knew the Corneau spring; the ancient fence was two arpens west of it, three arpens east, and four or five south of it; the inclosure was continued and repaired from time to time until the commencement of this suit; after Mr. Lindell bought the Bouis tract he took possession and cultivated it; he repaired the fence that ran along the center of the Laroche lot; it ran in a straight line until it enters into the north line of the Camp tract, then east with this line to the northeast corner, thence south with Camp’s east line to the southeast corner, thence west with Camp’s south line its whole extent, thence inclosing the Hunot New Madrid location, and around this to the beginning.
' The defendants introduced documentary evidence as follows: The confirmation papers by Recorder Hunt, June 1, 1825, to the legal representatives of Vincent Bouis, of the common-field lots in Grand Prairie two arpens in front by forty deep, bounded north by the field lot formerly owned by LaBarge, south by the field lot formerly owned by John B. Provenchere, east and west by public land. The testimony of Aug. Chouteau shows that this is the field lot which had first been cultivated by Marie, who sold to P. Chouteau, who sold to Bouis’ heirs; and the testimony of Sanguinet on the trial showed the cultivation of Marie.
Then the survey of this confirmation No. 1813, made by said Cozzens and approved May 31, 1855, by the surveyor-general. This survey is not pushed back from the east front line of the common fields nine’ arpens and thirty-six feet, but its east front line is the east front line of the Grand Prairie common fields, extending down southwardly from Mainville dit Deschenes, in Cass avenue.
Also a public notice of same date, by Surveyor-General Con-away, published in the Missouri Republican, that these, with other surveys, were to be made by said Cozzens.
The confirmation papers by Recorder Hunt to legal representatives of Baptiste Riviere dit Baccanet, under the acts of June 13, 1812, and May 26, 1824, of a field lot in Grand Prairie-of 1 by 40 arpens, bounded on the east by vacant land in a line with eastern boundary line of the Grand Prairie, north by the field lot formerly owned by Rondo, west by vacant land in a line with the western boundary of the Big Prairie field, and south by the field Tot formerly owned by Baptiste Corneau.
Survey No. 1814 of the confirmation to the legal representatives of Baptiste Riviere dit Baccanet, made by Cozzens at the time of the one last named, and also approved by the surveyor-general.
Spanish concession to Wm. Bizet, dated February 7, 1769, of one arpen in width by forty deep, in the cul de sac of the Grand Prairie, adjoining on the one side of the land of Baccanet, and on the other of Kunz des Noyers.
General notice to F. Bates, recorder of land titles, dated the 28th of November, 1812, by Riddick, Chouteau and others, to record the concessions in Livres Terreins Nos. 1, 2, 3, 4, 5 and 6, which is followed by said concession to Bizet in the original French. This is under acts of Congress (section 7 of the act of June 13, 1812).
Confirmation papers of this claim by last board of commissioners ; also act of Congress of July 4, 1836.
Act of Congress of April 29, 1816 (3 U. S. Stat. at Large, 329), and confirmation of this claim by Recorder Bates.
Survey No. 3340 of this confirmation, approved September 6,
Defendant also gave in evidence confirmation papers and survey of field lot in Grand Prairie to the legal representatives of Louis Laroche, and also confirmation papers and surveys of several other common-field lots having their east front lines continuations of a straight line extending southwardly from the east front line of Mainville Deschenes’ lot.
Defendants then gave evidence (documentary) to show their derivative title from the aforesaid confirmees.
. Defendants also gave in evidence a large number of Spanish concessions from Livres Terreins, numbers one and two of common-field lots, in order to show the existence in Spanish times, and prior to the 20th of December, 1808, of a common field in Grand Prairie belonging to the town of St. Louis, and its boundaries and extent, and the shape, size and relative situations of the lots conceded. The defendants rested, and the plaintiffs, in rebuttal, gave in evidence the letter of instructions of the 20th of May, 1857, from surveyor-general to Cozzens, and the surveys made thereunder, by which the Bouis, Baccanet and Bizet surveys are set back nine arpens and thirty-six French feet; and the explanations of Cozzens in reference thereto.
Plaintiffs also put in evidence a copy of Hunt’s minutes as to the claim of Louis Laroche, embracing the testimony of Baptiste Riviere dit Baccanet regarding that claim. Plaintiffs also put in evidence a deed of the defendants inter partes, for the partition among themselves of the premises in dispute.
The plaintiffs here dosed, and the defendants gave in evidence certain statements, under oath, of ancient witnesses (Baptiste Riviere dit Baccanet and Rene Dodier) before Recorder Hunt, showing cultivation, location, etc.; also letter of instruction from the commissioners of the general land office to Surveyor-General Loughborough, dated November 27,1856, which adopts the recommendations of the report to him by Loughborough of the 30th of January, 1855, not to disturb the surveys theretofore made
The defendants asked the following instructions, which were refused, and they excepted:
1. If the court shall find from the evidence that prior to the 20th of December, 1803, there was a series of lots of similar form and character, situated in the Grand Prairie in the neighborhood of the town of St. Louis, and lying adjoining to each other in the same general range of lots, and which said lots were used by the inhabitants of said town prior to said date for the purpose of cultivation, and that the premises in the possession of Peter Lindell at the commencement of this suit are within the out-boundary of said lots, then the plaintiffs cannot recover in this action against the defendants who have answered, although the court may also find from the evidence that said premises lie within and are a -part of section 16 of township 45 north, range 7 east of the fifth principal meridian.
2. If the court shall find from the evidence that prior to the 20th of December, 1803, there was a series of lots of similar form and character, situated in the Grand Prairie in the neighborhood of the town of St. Louis, and lying adjoining to each other in the same general range of lots, and which said lots were
3. If the court shall find from the evidence that prior to the 20th of December, 1803, there was a series of lots of similar form and character, situated in the Grand Prairie in the neighborhood of the town of St. Louis, and lying adjoining each other in the same general range of lots, and used by the inhabitants of said town for the purposes of cultivation, and that the premises in possession of Peter Lindell at the commencement of this suit, and adjoining on the north the northern line of the United States survey No. 903, for widow Camp’s legal representatives, are a part of such lots, and were cultivated by inhabitants of said town prior to the 20th of December, 1803, as such lots, then the plaintiffs cannot recover in this action, although the court may also find that said premises lie within section 16, township 45 north, range .7 east of the fifth principal meridian.
4. If the. court shall find that a tract of land of which the premises in possession of Peter Lindell at the commencement of this suit are a part, was cultivated by Yincent Bouis prior to the 20th of December, 1803 ; that said Bouis was at the time of such cultivation an inhabitant of the town of St. Louis ; that said tract was situated in the Grand Prairie in the neighborhood of said town, and was used by said Bouis for the purposes of cultivation, and was one of a series of lots of similar form and character, also made by inhabitants of said town for the purposes of cultivation, and lying adjoining to each other in the same general range of lots, then the plaintiffs cannot recover as to said part, although the court may believe from' the evidence that the same lies within section 16, township 45 north, range 7 east of the fifth principal meridian.
6. If the United States survey No. 1813 of the confirmation to Yincent Bouis or his legal representatives, under Pierre Chouteau, given in evidence by the defendants, was made by a deputy surveyor, under the surveyor of the lands of the-Uni ted States, for Illinois and Missouri, pursuant to mitten instructions which had by him been furnished to said deputy, and the same was by the latter returned to the office of said surveyor, and was by him approved and recorded, then the same could not be legally changed nor a different survey of said confirmation be made, to the prejudice of the legal representatives of said Bouis, claiming under said survey, without previous notice thereof to them; and there is no evidence in this case of such notice.
7. A similar instruction as to survey No. 1814 of the confirmation of Baptiste Riviere dit Baccanet.
8. A similar one as to entry No. 3340 of the confirmation to Guillaume Bizet or his legal representatives.
Defendant also asked the following instructions, which were refused:
(a) The common-field lots of the Grand Prairie common fields of St. Louis that were cultivated by any of the inhabitants of St. Louis prior to the 20th of December, 1803, were confirmed and granted to the several inhabitants so cultivating such common-field lots by the act of the 13th of June, 1812; and said grant took effect on the 13th day of June, 1812, according to the boundaries of the respective cultivations of said inhabitants, and passed the title immediately to the said respective inhabitants. All the field lots in said Grand Prairie that were not cultivated by any of the said inhabitants of St. Louis prior to the 20th day of December, 1803, were reserved for support of schools in said village of St. Louis.
(&) If the court, siting as a jury, finds from the evidence that the common-field lots of the Grand Prairie, from the lot of Motard on the south to the St. Charles rock road on the north, were cultivated in regular succession of lots, adjoining each other on a straight front line, by several of the inhabitants of St. Louis prior to the 20th day of December, 1803, then the said inhab
(c) All the common-field lots of the Grand Prairie of St. Louis, if they were cultivated for several years prior to the 20th day of December, 1803, by inhabitants of St. Louis, as field lots belonging to St. Louis, were granted by the act of Congress of the 13th of June, 1812, to said inhabitants of St. Louis respectively on the said last named day and year ; and the grant of the 6th of March, 1820, accepted by the convention of Missouri in July, 1820, did not and does not take effect upon any portion of the land lying within the out-boundary lines of said common-field lots as they existed and-were cultivated prior to the 20th day of December, 1803.
(d) If the court, sitting as a jury, find from the evidence that the surveys of the Bizet, Baccanet and Bouis field lots, made under the instructions of May, 1846, and February 22, 1852, from the surveyor-general to ffm. H. Cozzens of St. Louis, at St. Louis, were made by said Cozzens in strict accordance with the ancient corner-stones of the field lots of the Grand Prairie,. and upon the true lines of the out-boundary of said common-field lots as they existed in 1803 and prior thereto ; and that said surveys of Cozzens were approved in 1855 by said surveyor-general and recorded in the records of his office; and if the court further finds that the subsequent surveys of said Cozzens in 1857, under instructions of 1857, located the eastern line of the Grand Prairie common fields south of Laroche, nine arpens and thirty-six feet west of the true and ancient line of the eastern front of said common fields as marked and fixed by Spanish stones, then the law is that the survey of 1855, of the ancient line of the eastern front of said common fields, is to be preferred to the survey of 1857, or any other prior surveys on a new line different from that existing in Spanish times.
(e) The court declares the law to be that if the instructions marked A and C are given for the defendants, then no title can
(f) The field-notes of survey by Brown of 1818 have ne authority or validity unless they were made under instructions from the surveyor-general, and were approved and platted in the surveyor-general’s office after the survey was executed ; and the said pretended survey of Brown, if valid, had no power, to vest any title in the State for the use of schools for any land lying within the Spanish lines of boundary of the Grand Prairie common-field lots of St. Louis.
It may be observed that this litigation was commenced almost, twenty years ago, and the same plaintiffs have maintained suits-as commissioners, under the act of the general assembly of 1851,. against various parties, both in the Circuit and Supreme Courts,, and their right to do so has been acquiesced- in sub silentio. In all the cases it has been assumed without discussion that these commissioners had the right to sue in their own names. In the case of Milburn et al. v. Hortiz, 23 Mo. 532, no question of this-kind was thought of, either by the counsel who argued the case or by the court, although the plaintiffs could have had no standing in court except by virtue of the authority conferred on them by the act of 1851. And the same may be said in regard to the cases of Milburn et al. v. Hardy, Milburn et al. v. Carpenter, Milburn et al. v. Blanchard, Milburn et al. v. McClure, and same v. Hogan, 28 Mo. 514-23. In these last cases the point was distinctly made in the instruction given by the Circuit Court on its own motion, and it was assumed to be correct without discussion, both in the Circuit and Supreme Courts. We do not feel-
The act of 1851 was passed under the old constitution, allowing special acts to be passed. It has not been expressly repealed that we are aware of by any subsequent act, nor has it been repealed by implication. Repeals by implication are not favored or allowed unless the first act be so inconsistent as not to stand with the subsequent act. Under this view the instructions asked by the defendants at the close of the plaintiffs’ case in chief were properly refused, and the first instructions for plaintiffs were rightfully allowed.
The defendants rested their defense on the title to the common-field lots of the Grand Prairie of the town of St. Louis, as being a better title than the title to the sixteenth section, vested in the State under the act of Congress of the 6th of March, 1820, and the acceptance of this grant by ordinance passed by the convention of Missouri in July, 1820. It may be considered as the settled construction of the act of Congress of the 13th of June, 1812, that-by its own terms this act vested in each inhabitant of the town of St. Louis the absolute title in fee to the common-field lot which he possessed or cultivated prior to the 20th of
In regard to the instructions prayed for by the defendants and refused by the court, I can see no substantial objections to them, except the two instructions marked A and E. Instruction A has appended to it a proposition that all the field lots in the Grand Prairie that were not cultivated by any of the inhabitants of St. Louis prior to the 20th of December, 1803, were reserved for the support of schools. This reservation is not properly stated' in the instruction. Only such of the lots as might be assigned, not exceeding a certain amount, were so reserved. In regard to instruction E, it is bad because it left no facts to be determined by the court sitting as a jury. It assumed all the facts in instructions A and C to be true, and left nothing to be passed on by the july.
The objection that the defendants’ instructions embraced confirmations en masse is a criticism upon the language of the instructions rather than a substantial objection. The instructions, in my opinion, do not bear that construction. They were intended to enunciate the proposition that each inhabitant of the town of St. Louis cultivating or possessing a common-field lot prior to the 20th of December, 1803,- was confirmed in his title to such lot by the act of Congress of the 13th of June, 1812. The defendants had a right in their defense to invoke these outstanding titles to defeat the plaintiffs’ action. The titles so emanating by act of Congress of the 13th of June, 1812, or emanating by act of Congress of April, 1816, were older and better titles than the title of the State to section sixteen, which was granted in 1820.
It was also suggested that the defendants were estopped by their deed of partition to claim or set up title to any land outside of the surveys of 1867, it being alleged that those surveys are recognized by that deed. That deed purported to divide among themselves by partition certain lands therein described. Does it follow that they thereby renounced any title that they may have had to lands not embraced in the deed? It is not pretended that the State was a party, or in any way interested in this deed of partition. Whatever may have been the effect of that deed as between the parties thereto, are they estopped in this action to set up their title to land which was not, in point of fact, embraced in that deed, or are they estopped thereby to set up an outstanding title older and better than that of the State? I am inclined to think the doctrine of estoppel does not apply to this case.
The judgment of the General Term of the Circuit Court is affirmed, and the cause remanded for further proceedings at special term.