16 Mo. 553 | Mo. | 1852
Lead Opinion
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
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
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.
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
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
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
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.
“ 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*584 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
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 com
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
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.
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
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
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 de
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.
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.
Dissenting Opinion
dissents, and refers to his opinion in the case of Eberle v. St. Louis Public Schools, 11 Mo. Rep. 257.