31 Mo. 110 | Mo. | 1860
delivered the opinion of the court.
The first question that arises in this case is the propriety of the action of the land court in admitting in evidence the plat of the town of St. Louis, placed in the office of the recorder of land titles by Auguste Chouteau in the year 1825. The plat was made in 1764, about the period that the village of St. Louis was founded. Chouteau is reputed as one of the founders of the village. The recorder of land titles, who had been in the office since 1837, testified that it was a public paper, and as such had been inventoried. Auguste Chouteau has been dead many years. Mr. Geyer testified that he had seen the plat in the recorder’s office several times ; that this map was produced in a case he tried for the Schools twenty-four or twenty-five years ago.
When we consider that in matters of public concern traditionary evidence is admissible as to boundaries, we are at a loss to conceive the ground on which the objection to the evidence is based. Chouteau was not the owner of the land on which the village was laid out, nor does it appear that he had any previous authority to do the act. But his conduct, and that of his colleagues, in laying off the town, was sanctioned and adopted by the Spanish government. For many years the map has been placed in the public office, where all the papers and documents relating to the early land titles in this territory were deposited. It has been exposed to the
The defendant claimed the lot in dispute by virtue of the act of Congress of June 13, 1812, as having derived title to it from those who inhabited, cultivated and possessed it prior to the 20th of December, 1803. The plaintiffs claimed under the same act and the acts of 1824 and 1831, and a designation and a setting apart of the lot by the United States officers for school purposes. There was much evidence in the case in relation to a calvary or cross erected on or near the lot immediately after the French revolution by French emigrants, among whom was a priest. The evidence in relation to the precise locality of the cross, and the length of time it was used before it was abandoned, is unsatisfactory and also contradictory. The spot on which the cross was raised was elevated. The base of the cross was twenty-five feet square, made of stone, and was eight or nine feet high. The cross was between twelve and twenty feet in heighth, and was approached on either side by stone steps.- To this cross annual processions were made by the Catholic inhabitants for the purpose of religious exercises. Picard, who was the original claimant of the lot, a witness says, consented to the erection of the cross; and the same witness stated that he was ordered by the lieutenant governor to remove his fence to make room for the people who annually assembled. The spot selected for the erection of the cross was chosen on account of its elevation.
The correctness of the foregoing declaration of law was the only point argued in the briefs of the plaintiffs. As there were other declarations of law on the evidence, on which a judgment might have been rendered for the defendant, and as the finding was a general one, if the declaration above set forth is unwarranted the judgment must be reversed. It was very natural that the court should have found that there was no appropriation of the lot in dispute for religious purposes, as the plaintiff did not controvert the fact, but opposed the conclusion of law deduced from it. But in the absence of all law, usage or custom, we do not understand how the erection of a cross upon the lot was a dedication of it to religious purposes, in such sense as would deprive the owner of the ground, upon which the erection was made, of his title to it. Is a dedication to be inferred from the simple fact, even if it was so, that the lieutenant governor ordered the fence to be removed which was in the way of the worshippers ? In all the investigations, which the Spanish titles have undergone, is an instance to be found in which a claim to land
In the absence of any law or usage of the Spanish government which authorized it, we can not say that there was a dedication of the property in dispute to the church. The circumstances do not warrant so harsh an inference. We can see in this record no authentic act of the government which shows that any such thing was contemplated. The The use of the property made by the worshippers of the Catholic faith was not inconsistent with the claim of Picard to the ownership of it. We would not have disturbed this judgment but for the declaration of law on which we have remarked.
We are of the opinion that the first instruction asked by the plaintiffs might have been given.
There were some minor points made in the admission of evidence during the trial, but as they were not very important and have not been stated in the briefs furnished us, we deem it best to pass them over.
Reversed and remanded.