36 Mo. 494 | Mo. | 1865
delivered the opinion of the court.
The defendants were in the actual possession of the land in controversy, and gave evidence of a possession of long standing, under a claim of title. There was no evidence that the plaintiffs, or those under whom they claimed, ever had been in the actual possession of the land sued for; they depended solely upon a right to the possession resulting from superior title.
At the close of the evidence, the plaintiffs asked the court to instruct the jury (among other things), “that the acts of Congress of the 13th of June, 1812, and the 27th of January, 1831, confirmed to the inhabitants of the town of St. Charles and vested in them the legal title to their commons as claimed by them and spread upon the records of the Government, and that the survey of the said commons made and certified prior to the 10th day of March, 1804, by the proper officer, is prima facie evidence of the true location, extent and boundary of said commons”; which instruction the court refused. One of the instructions, given at the instance of the defendants, declared that “ although the jury may find from the evidence that Evans’ survey of lots Nos. 14 and 20 of block 4, as claimed by plaintiffs, runs into and interferes with approved U. S. survey No. 164, given in evidence by defendants, yet unless plaintiffs have shown title to the interference now in controversy they cannot recover in this action.”
These instructions raise the question whether, upon the evidence before the jury,Aie plaintiffs had shown any title to the land in controversy.' The only Evidence of a title to commons in the Town of St. Charles, under whom the plaintiffs claimed, that appears in this record as a basis for the instructions which were asked by the plaintiffs, was the plat
This survey and certificate were admitted in evidence without objection, and we have only to consider the effect of it as evidence. The certificate of Soulard cannot be allowed to spqak as a deposition of a witness as to extraneous matters recited in it; nor, if it could, does it contain any statements of fact from which a jury would be warranted in inferring that a right, title and claim to commons had existed in fact prior to the 20th day of December, 1803, and with the exter^j and boundary mentioned in the plat and certificate. It certifies only that a tract of land was surveyed and bounded, in
In the absence of any official survey of commons by authority of the United States, the only way i#which a title to commons under the act .of Congress of the 13th of June, 1812, can be shown is by proof of some grant, concession, survey, or actual possession, claim, or user, of some definite tract of land as commons prior to the 20th day of December, 1803. Without such evidence, there can be no title to commons, under that act, where no official survey is shown.
In Chouteau v. Eckert, 2 How. (U. S.) 344, several documents were in evidence tending to show an actual concession, claim, and possession of commons, with the definite extent and boundary, which were afterwards accurately marked by the survey of Soulard, and that the commons of the town had been enclosed by a fence as early as 1798, including the lot in controversy in that case; and the court said, “ the 3hole of the claim is included in the village common, of St. liarles as it existed on the 20th day of December, 1803.” The St. Charles common was indirectly alluded to in Caron
In the case of Bird v. Montgomery, 6 Mo. 510, documentary evidence of like character was introduced (together with the survey of Soulard) clearly showing an actual claim and concession of commons existing in fact as early-as 1801, with the definite boundaries afterwards designated by the survey. It was insisted by the defendant in that case, “ that the act of 1812 operated to confirm the titles of claimants only when there was a grant from the Spanish Government, or sueh long use and enjoyment of a specific quantity of land as would amount to a grant.” The court held this position to be correct, if the word grant were understood to include inchoate titles and concessions, and all such rights, titles and claims as were the subjects of the act of Congress; and it was added, that “ in this case there was not only a claim to an indefinite quantity of land as far back as 1796, and which was recognized by the proper authorities of that day, but a more distinct and definite claim set up in 1801, and express-, ly conceded by the proper officer so far as he had authority to make such a concession.” The documents that appeared in evidence were considered as having fixed and established the claim to commons with definite boundaries as a right, title and claim existing prior to 1803, as it was also actually surveyed by Soulard before the transfer of Upper Louisianr in 1804; and as such claim so proved, it was held to have been confirmed by the act. It is pelear that this conclusion
The conclusion must be that there was no evidence before the jury, in this case, of any title whatever to commons in the Town of St. Charles at the date of the plaintiff’s lease. It follows that there was no error in the ruling of the court upon the instructions in question; and, indeed, that the only instruction that could properly have been given, would have been to the effect that the jury should find for the defendants.
It was not claimed on the part of the plaintiffs that the survey and plat of the out-boundary line of the town of St. Charles, under the act of 13th June, 1812, was a survey of the commons, or any evidence of the location, extent and boundary of the commons ; though some of the defendants’ instructions affected to treat it as such, and as a survey of the private lots marked on the plat. It can hardly be necessary to say, that this was no survey of any tract of land for the land as commons, or for an individual as a private lot. (Kissell v. Schools, 16 Mo. 587 ; Glasgow v. Hortiz, 1 Black. 595.)
There is no occasion that we should proceed to review in detail the numerous instructions that were given or refused on either side. In reference to those which related to the defendants’ title by the certificate of the U. S. Recorder of land titles, on proof made before Recorder Hunt under the act of 26th of May, 1824, and a survey thereon, it may be observed, that until the plaintiffs can show some title in themselves to the land in controversy, they will not be in a position to question or dispute the prima facie title shown by those documents, however erroneous that survey may have
Judgment affirmed.