Kissell v. Board of President of the St. Louis Public Schools

| Mo. | Oct 15, 1852

Lead Opinion

G-AMBiB, Judge,

delivered the opinion of the court.

, The present state of the decisions in this court, upon the questions discussed in this case, seems to require a more minute examination of them than would otherwise be thought necessary.

The reports of previous decisions contain-such full extracts from the different acts of congress affecting the titles, that a brief statement of their provisions is all that will now be made.

The first section of the act of June 18th, 1812, (2 Stat. at large, 748,) by its own terms confirms the claims of the inhabitants of the several towns and villages in Missouri ‘ ‘ to the town or village lots, out-lots, common field lots and commons, in, adjoining and belonging to the several towns or villages,” requiring, however, in order to a confirmation of the lots, that they should have been “ inhabited, cultivated or possessed prior to the 20th December, 1803.” In the same Section, it is made the duty of the principal deputy surveyor, ‘‘to survey or cause to be surveyed and marked, (where the same has not already been done, according to law,) the out-b'oundary lines of the said several towns and villages, so as to include the out-lots, common field lots and commons thereto respectively belonging.”

The second section provides that, “ all town or village lots, out-lots or common field lots included in such surveys, which are 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 no.t think proper to reserve for military purposes, shall be and the same are, by the act, reserved for the support of schools in the respective towns and villages : provided the whole quantity of land, contained in the lots reserved for schools, shall not exceed one-twentieth of tbe whole lands included in the general survey of a town or village.”

The first section of the act of the 26th May, 1824, (4 Stat. at large, 65,) makes it the duty of the owners of lots which were confirmed by the act of the 13th June, 1812, to prove, within eighteen months after the passage of the act, before the recorder of land titles, the inhabitation, cultivation, or possession of their lots, and the boundaries and extent of each claim, so as to enable the surveyor general to distinguish the private from the vacant lots appertaining to the said towns and villages.

The second section of this act makes it the duty of the surveyor general, immediately after the expiration of the time allowed for the private owners to prove the inhabitation, cultivation or possession of their lots, to proceed, under the instructions of the commissioner of the general land office, to survey, designate, and set apart to the said towns and villages respectively, so many of the said vacant town or village lots, out-lots and common field lots, for the support of schools in the said towns and villages respectively, as the President shall not, before that time, have reserved for military purposes, and not exceeding one-twentieth of the whole lands included in the general survey of such town or village.

On the 27th January, 1831, an act of congress was passed, for the purpose of transferring the title of the United States to the property belonging to the several towns and villages, which had been acted upon by the act of the 13th June, 1812, 4 Stat. at large, 435. The first section relinquishes to the inhabitants of the several towns and villages, all the right, title and interest of the United States in and to the town or village lots, out-lots, common field lots, and commons confirmed to them by the first section of the act of the 13th June, 1812. The second section relinquishes all the right, title and interest of the United States in and to the town and village lots, out-lots and common field lots, in the state of Missouri, reserved for the support of schools in the respective towns and villages, by the second section of the act of the 13th June, 1812.

The title paper exhibited by the public schools for the lot now in controversy, is a document issued by the surveyor general for a larger piece of ground assigned to the public schools under the instructions of the commissioner of the general land office, which includes the lot involved in the present suit. The action of these officers of the government professes to be under the different acts of congress before mentioned.

The title of the defendant, Kissell, is under a purchase from the government, made in the name of Robert Duncan, in the year 1835, under the preemption laws.

The other facts in the cause, which are material to the decision of the questions arising in the case, will be noticed as, the questions are considered.

1. The question is presented upon the facts now stated, whether the legal title to the property has passed from the United States, and to whom? In the case of Hammond v. The Public Schools, 8 Mo. 65" court="Mo." date_filed="1843-07-15" href="https://app.midpage.ai/document/hammond-v-st-louis-public-schools-6610865?utm_source=webapp" opinion_id="6610865">8 Mo. Rep. 65, it was held by this court, that the reservation of property for the use of schools, made by the second section of the act of June, 1812, did not operate to'transfer any title from the United States in the property so reserved, and this opinion is approved in the subsequent cases in which these school titles have been considered. In the same opinion, it is intimated that the title of the United States to the property reserved by the second section of the act of 1812, passed by the act of the 27th January, 1831, and this seems to be conceded in all the subsequent cases. In the present case, it is contended for the appellant, Kissell,' that the act of 1831 so operates to pass the title, that no doc-cument from any public office is required to be issued ; and if one is issued, it is of no further use than to furnish evidence of the subject upon w'hich the act has operated.

It is also insisted, that the act of 1831 supersedes the act of 1824. When we observe the title's of the two acts, we will see that the latter was not designed to supersede the first. The act of 1824 is entitled “ an act supplementary to an act passed on tbe 13tb June, 1812 the act of 1881 is entitled “ an act further supplemental to an act entitled, &c., passed the 18th June, 1812.” If the provisions of the two are inconsistent, then the latter repeals the former, but only so far as they aro inconsistent. If they can stand together, it is obviously the general intent of congress that they should both stand.

The act of 1831, in its first section, is a relinquishment of the right of the United States to the property confirmed by the act of 1812. This was only consummating the title, of which evidence was to be given under the act of 1824 by the certificate of confirmation issued by the recorder, so far at least as property of individuals was confirmed. So far as the commons of the different towns were concerned, the act of 1824 had required the surveyor to survey and designate them, and the act of 1831 was a relinquishment of the title of the United States to them. The act of 1824 had' required the survey and designation of the school lots, under the limitations contained in the act of 1812, that is, that they should be vacant, not rightfully claimed by individuals, that they should not be reserved by the President for military purposes, and that they should not exceed one-twentieth of the whole property in the general survey of the town. The act of 1831 was not intended to dispense with this survey and designation, nor with the ascertainment by the officers of the government, of the facts upon which the designation was authorized to be made under the act of 1824.

No reason is perceived for construing the act of 1831, in the clause relating to school lots, differently from those clauses which relate to the commons, and the lots of individuals. If there had been no survey and designation of the commons under the act of 1824, the act of 1831 was not designed to dispense with that requirement of the former act, and leave the towns at large to ascertain and assert their claims to commons as best they might, but was intended to perfect the title of the towns to the commons, surveyed and designated as the former act required. The whole difficulty in the construction of these acts, is produced by the fact, that the officers who were require ed by the first acts to perform certain duties, had not performed them when the last act was passed. If the property now claimed by the schools had been designated and set apart before 1881, there would be but little difficulty in arriving at the conclusion, that the act of 1831 operated as a relinquishment of the title of the United States to this particular property; but because neither the out-boundary was surveyed, nor the property set apart to the support of schools before that time, it is now contended that the act of 1831 dispenses with all the requirements of previous acts, and throws the title to property claimed for the support of schools open, to be asserted and maintained without any documentary evidence as they may best be able, in courts of justice. Such is not the design of the act, and the construction given to it in Boyce v. Papin, 11 Mo. 16" court="Mo." date_filed="1847-10-15" href="https://app.midpage.ai/document/boyce-v-papin-6612181?utm_source=webapp" opinion_id="6612181">11 Mo. Rep. 16, shows that the act of 1824 is still to be executed by the surveyor, by setting apart the school property, and when it is executed, the act of 1831 operates upon the title.

The act of 1824 was, in part, intended to remedy the evils introduced by the act of 1812, which confirmed titles to property, without any documentary evidence of title existing, by which the property thus confirmed could be distinguished from that which remained public ; and it is not to be supposed that congress designed by the act of 1831, either in relation to commons, or the property appropriated to the support of schools, to reproduce the very evils which the act of 1812 had introduced, and the act of 1824 had at least partially cured.

It may then be taken as true, that the designation and the act of 1831, are to be taken together, in considering the effect upon the title.

It cannot be doubted that, under the acts of 1824 and 1831, and a designating and setting apart of property to the schools, by the surveyor general, under the instructions of the commissioner of the general land office, the whole title of the government, legal and equitable, passes. It is believed that such would be the effect under the act of 1824, but in order to remove all doubt upon the question, and out of abundant caution, the act of 1831 relinquishes the right, title and interest of the United States. When the document is produced which is required under these acts, the party has produced all that is necessary to show that the title of the government has passed. He need not go back to show the progressive steps in the title. This is a familiar rule, applicable not only to patents, but to inferior evidences of title. All are familiar with the repeatedly declared rule that when a patent is produced, all previous steps required by law before its emanation are presumed. Polk’s Lessee v. Wendal, 9 Cranch, 87" court="SCOTUS" date_filed="1815-02-21" href="https://app.midpage.ai/document/polks-lessee-v-wendal-85099?utm_source=webapp" opinion_id="85099">9 Cranch, 87. 5 Wheat. 293" court="SCOTUS" date_filed="1820-03-18" href="https://app.midpage.ai/document/polks-lessee-v-wendell-85295?utm_source=webapp" opinion_id="85295">5 Wheat. 293. Patterson v. Winn, 11 Wheat. 383. The authority given to the President to direct the sale of the public lands, by the act of March 3d, 1811, is for the sale of such land as “ shall have been surveyed in conformity with the 8th section of the act.” This is the language of other acts conferring this authority, and yet when a certificate of purchase is produced in our courts, we never expect the party to produce evidence that the survey has been made in conformity with the requirements of the act. Nor do we expect the production of a proclamation made by the President, without which the register and receiver has no authority to sell lands. All such directions of the law are presumed to have been complied with. And when in this case the party produces the designation and setting apart to the use of .schools of a particular lot, and the act of 1831, relinquishing the title of the United States, he has shown a legal title to the property, complete in form, and it devolves on the opposing claimant to defend himself, by showing a better title, or that that which is set up against him is void, a mere nullity.

2. The defendant’s title in the present case, is one that cannot stand in opposition to that of the schools, if the documentary evidence of the latter be effectual to pass the title of the United States, because a purchaser from the register and receiver, whether he has made the purchase under a preemption claim, or by ordinary entry, has no title that can be set up in an action o£ ejectment against the United States, or the grantee of the United States holding the legal title. Bagnell v. Broderick,, 13 Pet., 436" court="SCOTUS" date_filed="1839-03-18" href="https://app.midpage.ai/document/bagnell-v-broderick-86108?utm_source=webapp" opinion_id="86108">13 Peters, 436. Wilcox v. McConnel, ib. 498.

3. The defendant, then, must rely upon impeaching the plaintiffs’ title, by showing it to be void, for if it have in it defects or irregularities only, in the action of the officers, they will not avail the defendant in this action.

It is evident that some confusion may arise in the consideration of the objections made to the plaintiffs’ title, from the fact that on the trial in the court below, the plaintiffs gave evidence beyond that which was necessary to the support of their action, and this evidence was objected to by the defendant, and in the view now taken, this evidence must be relied ,on by the defendant, to impeach the plaintiffs’ title.

4. The first objection to the title of the plaintiffs is, that the survey, designation and setting apart of this property for the support of schools, is invalid upon its own face. It is in these words :

“ Office of the Surveyor of Public Lands in the States of Illinois and Missouri:

“ St. Louis, 15th June, 1843.

“ Under the instructions of the commissioner of the general land office, the piece of land, the survey of which is herein platted and described, has been legally surveyed, and under the instructions aforesaid, it is hereby designated and set apart to the town (now city) of St. Louis, for the support of schools therein, in conformity with the second section of the act of congress, approved the 26th May, 1824, entitled an act supplementary to an act passed on the 13th day of June, 1812, entitled an act making further provisions for settling the claims to land in the territory of Missouri; the said piece of land hereby designated and set apart as aforesaid, is situated within the bounds of the survey directed to be made by the first section of the act of the 13th June, 1812, aforesaid, so as to include the town lots, out-lots, common field lots, and commons of the town of St. Louis, and is also within the limits of the said town of St. Louis, as it stood incorporated on ■the 13th June, 1812, and does not, together with all other land designated and set apart to the town of St. Lonis, for the support of schools, under the aforesaid second section of the ■act of congress of the 26th May, 1824, amount to one-twentieth of the whole lands included in the general survey directed to be made of said town of St. Louis, by the aforesaid first ■section of the act of congress of the 13th June, 1812 ; the said piece of land was not, so far as the records of the office show, rightfully owned or claimed by any private individual on the said 18th day of June, 1812 ; nor was it held as common belonging to the said town of St. Louis ; neither has it been reserved by the President of the United States for military purposes.”

Then follows a plat and description of land surveyed.

It is objected, that it does not appear by this document, that the land thus set apart, is, or ever was, in whole or in part, a town lot, out-lot, or common field lot, in, adjoining or belonging to the town of St. Louis, included within the survey of the out-boundary of the town, and reserved by the second section of the act of 1812. It is certainly stated, with great clearness, that “ it is included within the bounds of the survey directed to be run by the first section of the act of 1812,” as well as within “ the limits of the said town of St. Louis, as it stood incorporated on the 13th day of June, 1812.” Here is a reference to the boundary of the town, as ascertained under the first section of the act of 1812, and to the boundary run in conformity with the corporate limits, and in whatever way it is .ascertained, this ground is said to be within the boundary.

It is next objected, that the document does not show on its own face, whether the property was set apart to the support of schools, as a town lot, out-lot, or common field lot, belonging to the town. This is not admitted to render the act invalid, for when the officers of the government, entrusted to act upon a particular species of property, give tbe evidence of their action upon any given piece of property, it will be intended to be-within the scope of their authority until the contrary appears.

5. The next objection of the defendant, now plaintiff in error, ' is founded upon a survey, professing to be a survey of •the boundary of the town of St. Louis. The plat and description of this survey, professes to be a plat and description of the “ survey of the boundary lines of the town (now city) of St. Louis, in the territory (now state) of Missouri, as it stood incorporated on the 13th June, 1812, including the out-lots, common field lots of the common field of St. Louis, and the commons thereunto belonging, made in pursuance of the first section of the act of congress, approved 13th June, 1812, entitled an act making further provision for settling the claims to land in the territory of Missouri.5’

The objections to this survey will be considered in the order in which they are presented. First, it is said, that it professes to be based upon the corporate limits of the town as they stood on the 13th June, 1812, and that the act of congress of that date had reference to the limits of the Spanish town as it existed at the change of government, and consequently the survey or plat is erroneous, and could not be the basis of any legal designation of property for the use of schools. When we examine this proposition, it must be with the map before us, that we may see its effect. The survey to be made, is of the out-boundary of the town, so as to include the out-lots, common field lots and commons.

Now it is manifest that if the town, as incorporated, must, according to its own limits, be within the out-boundary required to be run by the act of 1812, then the reference1 in the survey (which includes the lots and commons) to the act of incorporation, does not, in any degree, affect the correctness of the out-boundary actually run. Suppose the incorporation, instead, of extending over a considerable territory, had been confined to the actually inhabited part of the town, and that the survey of the out-boundary, including .the lots and commons, bad, in sucb case, referred to tbe town as incorporated; when it appeared by tbe survey that tbe same space thus incorporated would, of course, be included in tbe general survey, can it be doubted that tbe survey would be beld valid, notwithstanding sucb reference to tbe act of incorporation. Tbe mere reference to tbe incorporation does not, of itself, show that tbe survey and plat are erroneous.

But it is objected, that tbe act of incorporation includes some territory that would not be included in a correct survey of tbe out-boundary as required to be run under tbe act of congress, and tbe surveyor has conformed to the act of incorporation, by including sucb territory. It may be answered that, in tbe main, tbe lines run are those required to be run under tbe act of congress ; and this error (if it be one) does not so invalidate tbe survey, that land which is properly included cannot be legally assigned and set apart for tbe use of schools. It is not believed that sucb would be tbe legal consequence of sucb an error. If a survey is made in sucb manner that an error in it does not affect tbe rights of tbe parties at present litigating about a portion of tbe land embraced within tbe survey, tbe error does not vitiate tbe survey, so far as their rights are involved, If tbe land in controversy would be embraced in a correct survey of tbe out-boundary, then any alleged error in a part of tbe survey may be disregarded. In other words, tbe objection to tbe survey, to be valid, must be one that goes to tbe question, whether tbe land in controversy is correctly included in it. Nothing is said, nor designed to be said, upon tbe question, whether tbe incorporated town of 1812 or the Spanish town of 1803 is tbe town referred to in tbe act of 1812, because sucb question is not thought to be material to this case. Now, if this survey is examined in connection with all tbe evidence in tbe case, there is nothing discovered on which its correctness can be impeached,, so far as the fact of including the' land now in controversy is concerned. When we look to tbe law under which it was made, we find that tbe surveyor was required to survey E¡,nd mark tbe out-boundary of tbe town, so as to include the out-lots, common field lots and commons, where the same bad not already been done according to law. This out-boundary might be a line that had already been surveyed and marked, or one that had never been surveyed and marked, or one that had in part only, been surveyed and marked. It was not required of the surveyor that there should be any work in the field in making the survey, where the line called for by this act was already ascertained and marked in the known and recognized surveys in his office. The survey of the out-boundary was not the survey of any tract of land for an individual. It was a survey of the exterior boundary of a town with its dependencies, its commons, in which all the inhabitants were interested, and the out-lots and common field lots in which those inhabitants were interested who were engaged in agriculture, or who owned land that had been held or used for that purpose. The design of the act was, that such, out-boundary, though called the “ out-boundary line of the town,” should be so run as certainly to include the out-lots, common field lots and commons “ belonging to the town and. in running this boundary at the time it was first commanded to be run, no person was interested but the government on one side, and the inhabitants of the town on the other. Whether it should include a greater or less extent of territory — whether a particular piece of vacant ground should be included or not, could, at that time, only interest those parties ; nor was the right of any party, who then claimed title to a piece of ground, affected, by the fact, that it was included within such line,' forT if he rightfully claimed it then, his right to it would still continue.

7. The surveyor, in performing the duty in relation to the-boundary, was, of course, to ascertain from all sources of information, what land was to be embraced within the survey,, either as out-lots, common field lots, or commons. ' He wa& then to run- one boundary line, including all the land of either description. That the act contemplated one continuous out-boundary line, and not separate surveys of the town, and o£ the common field lots, out-lots and commons, is evident from the direction to survey an out-boundary of the town, so as to include the lots and commons thereto belonging, and from the limitation in the proviso to the second section, of the quantity of land reserved for the use of schools, to one-twentieth of the whole lands included in the “ general survey” of the town.

In the discharge of this duty, the surveyor, as appears from the survey before us, commenced at a point on the river where the common fields came to the stream, and running around the common field of St. Louis until he intersected the line which was part of the limits of the incorporated town, he followed ¡that line until he came to the line of the commons, and then, following the line of the commons, he ran on to the river, and with the river to the beginning. The effect of running the line on the west, for a short distance, so as to leave the line of the common field, and pursue that of the incorporated town, could have no effect upon the question, whether the premises in controversy are rightly included in the general survey, and whether the survey was, in that particular, erroneous or not, does not affect the title to the premises. When the surveyor arrived at the river, at the south-east corner of the commons, he followed the river as the closing line of the survey, because on the river were lots which had been confirmed as out-lots of the town. Such were that confirmed to Susannah Dubreuil, under Sarpy, lying below the town, marked survey No. S74, and that to Mullanphy, under Eglise, above the town, and other pieces which had been granted by the Spanish Lieutenant Governor, bounded by the river, and which appear to be of the same description of tracts or lots. It will be seen, on examining the survey, that the river is taken as the eastern line, as well where it is the line of the incorporated town, as for more than a mile above the point on the river from which the line of the corporation commences.

8. Taking this survey, then, to have rightly included the , premises in controversy, we come to the most difficult question in the ease, which is, whether the property assigned to the publie schools was of that description which, under the second section of the act of 1812, was reserved for the use of schools.. Upon this question, there has been not only a difference of opinion among the judges who have sat in this court, but the same judges have sometimes doubted the correctness of opinions they had before expressed. The question, when generalized, is, whether all vacant ground found to be within the survey of the out-boundary, was intended to be reserved for the use of schools, or whether the reservation is confined to such ground as had, before the change of government, been actually designated and in some mode separated from other property, so as to be a town lot, out-lot, or common field lot, under the Spanish government. In the ease of Trotter v. The Public Schools, 9 Mo. Rep. 69, it was distinctly held, that the intention of congress was to reserve all the vacant ground included within the survey of the out-boundary. In Eberle v. The Public Schools, 11 Mo. Rep. 257, a different view of the question is taken by one of the judges, who held that the reservation did not extend to any vacant spaces within the general survey, but only to such parcels of ground as Were known as “lots” in the sense in which that word was applied to the lots confirmed. Another judge, maintaining his first opinion, that whatever vacant ground was included in the general survey, was reserved for schools, expressed the opinion that the out-boundary should include nothing but the lots and commons, as the lots were known under the Spanish government.

Judge Tompkins, who was in all phases of this question, the most earnest and almost vehement supporter of the opinion, that no property could be legally assigned and set apart for the use of schools, except that which, prior to the 20th December, 1803, had, by the action of the Spanish authorities, assumed the definite form and shape of town lots, out-lots, or common field lots, remarks, in his separate opinion given in Hammond v. The Public Schools, 8 Mo. Rep. 86, “from all that I have been able to collect of the practice of the Spanish authorities at St. Louis, as well from the testimony in this cause as in others that have been in this court, they never, for many years, did lay out lots, but on the application of those who demanded them, either for cultivation or residence. If that be the case, it necessarily follows, that there would be no vacant lot about or in St. Louis, unless it were abandoned by the person for whom it had been laid out.” Again, at page 87, he says : “ I therefore conclude, that congress did not intend to give to the town of St. Louis any land, except what was known and marked out by survey of the proper officer, as a town or common field lot.”

So far as known, the town was not laid out, as is common at the present day, by a survey of a tract of land into squares and lots, with regular streets running through the tract thus laid out, and intersecting each other. And on the copy of the old map in the recorder’s office, which was drawn by Auguste Chouteau, exhibiting the line of fortification, it is apparent from the certificate of the recorder, that there was, when that map was made, no projection of cross streets west of Third street, so that whatever of the Spanish town had existence subsequently, west of that street, was created alone by grants. Now, if, instead of the town having definite boundaries by a previous survey of a limited space of ground into squares and lots with streets, there was a piece of land bounded on the west by the common fields, into which the streets were to be projected, and where lots were to be granted upon such projected streets as they were asked for from the government officers, it is difficult to find any good reason for saying that such un-granted residuum cannot be treated as town lots ; and if it exist now, why it should not now be divided into appropriate squares and assigned to the schools, or assigned as a whole.

Or, if we suppose that a tract existed within the common fields, which never was a common field lot, in the sense of having ever been granted or surveyed as such, but was a space left ungranted in the common field, because it was unfit for cultivation, but baving.tbe same east and west lines as the common field lots granted, and being in between those which were granted and surveyed, it has the same shape as those lots that were surveyed — was it then a common field lot ? It is not supposed that there would be any difficulty in saying, that it clearly comes within the intention o£ the act of congress in reserving such land for the use of schools, although it never had been surveyed.

9. It is altogether probable, that, in relation to the inconsiderable villages existing in the territory of Missouri as early as the year 1812, which had their origin under the former government, the congress of the United States had but very limited information; and that but little was known of the manner in which the property in and around these villages was held and occupied. There were no public offices, in which, as with us, connected maps and surveys would exhibit the situation and size of the villages, or the position and relations of the different tracts of land in which the villagers were interested. The information upon which congress must act could only be obtained from intelligent individuals, in whom the government could place confidence. The information upon which the act of June, 1812, was based, was obtained from Mr. Penrose and Mr. Riddick, one a commissioner, and the other the secretary of the board, which had just then closed its labors. The information was contained in letters addressed to the secretary of the treasury and to the chairman of the committee on public lands, which will be found in the second volume of State Papers by Gales & Seaton, 448 and 451. These letters have been so often referred to, and parts ■ of them copied in former opinions, that they will not now be copied. In them is found the idea of the ,out-boundary, and the confirmation of individual claims, and the reservation of vacant property for the support of schools. The congress may have supposed that the property belonging to the villages was in such compact shape, that an out-boundary line would include nothing but town lots, out-lots, eommon field lots and commons, and tbe probability is, that such was their belief. In' that view, the act was so constructed as to dispose of all within the out-boundary directed to be run, and it is supposed to be the clear intent that all within the out-boundary should be disposed of, either to individuals, or to the aggregate inhabitants, for commons and the support of schools. This is perfectly apparent from the descriptions of property directed to be included within that boundary. But when it is discovered that a boundary, so run as to include the property thus mentioned, will also include other property, which had not been divided into lots, there is no warrant in the law, either to refuse to run the boundary, or to break up the survey into separate surveys of the town, and of the out-lots, and common field lots, and commons, in order to avoid including such property. When it is so run as one boundary, the vacant property included within it, is still within the general intent of the act, which, as before stated, is to dispose of all property thus included.

10. But the question then arises, whether the language of the act admits of our giving effect to this general intent. The reservation is, of “ all town or village lots, out-lots or common field lots included in the survey, and not rightfully owned or claimed by any private individual, or held as commons belonging to the towns or villages.”

As far as appears upon the evidence in the case, there has been no act of the Spanish officers in relation to this property, surveying it as a lot of any description, otherwise than by surveys of the adjoining property which bound it on all sides but the one which fronts the river ; nor is there any declaration, or expression, in relation to it, found in any deed, grant, survey, or other document made under the Spanish government. It is claimed that it comes within the reservation as an out-lot. Now it is true, that if an inhabitant of the town had asked the Lieutenant Governor to grant this ground to him, that he might pasture his horse or his cow in it, it would in all probability have been granted to him, and then, because of its close proximity to the town, and its relation to other dependencies of tbe town, it would in all probability bavo been confirmed to bim as an out-lot of tbe town. Such certainly bas been tbe fact in relation to other property farther separated from tbe town, and having no more connection with any other lots of like description, as appears as well by tbe examination of tbe recorder’s report, confirmed by tbe act of 29th April, 1816, as tbe action of tbe recorder under tbe act of 26th May, 1824. Now, if this lot would have been properly described as an out-lot, upon its being granted to an individual, and might, consistently with tbe practice of the government, have been confirmed to tbe individual claimant as an out-lot, is it less an out-lot within tbe true intent of this reservation, because it never was granted bitt remained vacant ? Tbe term “out-lot” is said to be of American origin, and to be unknown to those who preceded us in tbe possession and government of this country. If this be so, we would naturally look for an American interpretation of it, and if tbe public authorities, from congress to tbe recorder, have applied it to property situated in relation to tbe town, just as that now in controversy was situated, we would have tbe signification of tbe term conveyed in tbe most forcible manner. It is conceded in tbe argument filed for tbe plaintiff in error, that tbe recorder bas in bis reports designated not only common field lots, but grants elsewhere near tbe town, as “ out-lots.” These reports have been confirmed by congress, and persons bold the property thus confirmed to them as out-lots. Now, this language thus used in tbe reports, applies to property situated, some below this piece on tbe river, some above tbe town, and to one piece in tbe commons entirely unconnected with any other survey, and if this exposition of tbe term is to be taken as that which tbe government itself gives, it would seem at least to justify tbe commissioner of tbe general land office and tbe surveyor, acting under his instructions, in setting apart this property for tbe support of schools. It is certainly a very doubtful position, that tbe property which is reserved is only that which bad been actually surveyed and divided off into lots by the Spanish government. In the midst of the conflicting opinions which have been expressed in relation to the extent and subjects of the reservation, great influence should be allowed to the action of the land department of the government, in the recognition of the right of the inhabitants to hold this and other property similarly situated, for the support of schools. The department has recognized this property as reserved by the act of 1812. It is true that it is not said in any of the documents that it is a town lot, or an out-lot, or a common field 'lot, nor was it necessary, in order to pass the title, that such statement should be contained, either in the -instructions of the commissioner, or in the designation of the surveyor.

The department has acted upon the opinion, that whatever was rightly embraced in the survey of the out-boundary was intended to he disposed of by the acts of congress, and having recognized and approved a survey that includes the premises in question, the result was readily attained, that this property, not being rightfully claimed by any individual, was to be appropri-ted to the support of schools. Judges sitting in this court have concurred in that opinion, and it would only be upon the clearest conviction that it is erroneous, that a contrary judgment should now be pronounced.

It is to he observed that the shape in which the objections now appear, is that of objections to the validity of a title clothed with the forms of law. If they are not in their own nature legal objections, or if there is not evidence in the case on which they can be raised, they must be ineffectual and the title of the plaintiffs must prevail.

The points considered and decided, and for which the reasons are before given, are the following :

1. It is maintained that the survey, designation and setting apart for the support of schools of a piece of property described to be fithin the out-houndary of the town, as directed to be surveyed under the act of 13th June, 1812, taken together with the act of 1831, make a regular formal title to the property so set apart.

2. That the entry o£ the same land with the register and receiver must yield, in an action of ejectment, to the title under such designation.

3. That if the purchaser, under such entry, is allowed to go behind the act of setting the property apart for the support of schools, in order to question the legality of the act, he must show it to be entirely without authority of law, in order to have benefit from such impeachment of the title.

4. That the designation in this case is not void by reason of any defect apparent on its own face.

5. That the first section of,the act of 1812 contemplates a continuous out-boundary of the towns, to be so run as certainly to include the out-lots, common field lots and commons of the towns.

6. That the fact that the survey of such out-boundary includes too much or too little land, does not invalidate the survey, as to any property, which is rightly included within it, and there is no evidence in this case impeaching the correctness of the survey, in including the premises in controversy.

7. That the fact that the survey in the present case professes to be a survey of the incorporated town, with the out-lots, common field lots and commons, does not invalidate it.

8. That the act of 1812 was designed to dispose of all the property included within the out-boundary of the towns.

9. That it was not necessary, in order that the property included within the out-boundary should be reserved for the support of schools, that it should have been surveyed into town lots, out-lots or common field lots under the Spanish government.

10. That the property described in the survey and designation in this case, might properly have been set apart as an out-lot, according to the practice of the government, as shown in evidence on the trial.

Although the instructions asked by the defendant are not commented upon, it is believed they are covered by the principles thus stated.

From these positions it follows, that the defendant has failed to impeach, successfully, the title of the plaintiffs. On some of these points, there has been hesitation in giving an opinion that differs so far from those expressed by other Judges of this court on former occasions, and it is hoped that, as this case depends entirely upon the construction of laws of the United States, it will be taken to the tribunal in which such questions may be finally settled.

The judgment is, with the concurrence of Judge Byland, affirmed.

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Dissenting Opinion

Scott, Judge,

dissents, and refers to his opinion in the case of Eberle v. St. Louis Public Schools, 11 Mo. Rep. 257.