57 Mo. 472 | Mo. | 1874
delivered the opinion of the court.
This case depends on a single question — the construction to be given to the confirmation of the board of commissioners of Labeaume’s claim in 1810.
This survey was made by Jos. C. Brown, and followed the decision of the board in regard to quantity ; but the survey was set aside and a new survey made, conforming it to Soulard’s survey, and upon this new survey a patent issued to Labeaume in 1852.
There is no dispute that the last survey and the patent thereon cover the land in controversy. The question is, whether the last survey (No. 3,333) is to be understood as a correct survey of the confirmation in 1810. The defendants insist that the confirmation was of 356 arpen ts, and therefore that the survey of Soulard, which was for 374 arpen ts, was virtually rejected by the board; whilst it is urged on the other side, that the confirmation was of a tract of land surveyed by Soulard under the directions of Trudeau, and that Soulard’s survey was confirmed.,
If the court adopts the opinion in Mitchell vs. Handheld, (33 Mo., 431.) and in West vs. Cochran, (17 How., 412) there could be no question on this point. But since the decision of these cases the supreme court of the United States in Magwire vs. Tyler, (8 Wal., 669) it is said have overruled these opinions.
The case of Magwire vs. Tyler is a peculiar one, originating in a dispute about locality, and really involving no question in regard to the construction of the acts of congress of 1805-7, etc., or the acts of the board of commissioners in 1810. The representatives of Brazeau insisted that their land was inside of the land confirmed and surveyed to La-beaume. The departments at Washington at first determined otherwise, and surveyed for Brazeau a tract south of, and outside of the Labeaume survey, and so long as this condition of affairs lasted, the courts here and at Washington recognized the right of the government to locate the Brazeau
But it will be observed that the titles of Labeaume and Brazeau were synchronous, and originated from the same board of commissioners. The dispute was as to their locality. The Brazeau representatives insisted from the beginning, that their claim was inside of the Labeaume survey, though the government surveyors located it outside and south of the ditch that formed the southern line of Labeaume’s tract, and so it was patented to Brazeau’s representatives; but they refused to accept the patent and this survey and patent were ultimately set aside, and the Brazeau tract of 4 by 4 arpents was located within the Labeaume tract and a patent issued in conformity to this location, and this title in the case of Magwire vs. Tyler, (18 Wall. 669) was held to be the best one. In the opinion of the court in this case, the Spanish survey of Soulard is criticised — in fact, held to be erroneous, and the patent issued thereon in 1852 is cited to show that it was subject to “ valid adverse claims.” How far this opinion was intended to affect the title under the confirmation of 1810 is not clear. It is held beyond dispute that this survey of Soulard embraced the Brazeau reservation. Beyond that it was unnecessary to go, and we are not prepared to say that the court meant to overturn the survey and patent in toto and force the representatives of Labeaume to prove their lines under Trudeau’s grant. In other words, it was not. >ve think, the intention of the court to declare Soulard’s survey and its retracement by the U. S. surveyor a mere nonentity, and place Labeaume’s claim on the basis of grants under the acts of 1812, 1815, etc., in which the claimant has nothing to do but to prove his cultivation, possession, etc.
In West vs. Cochran and Mitchell vs. Handfield it was decided otherwise. The claim of Labeaume was considered a
The claim of Labeaume in 1810 was not to an indefinite tract of land. Judge Catron says in West vs. Cochran (17 How., 412): “ In 1810, the board of commissioners confirmed the grant to Labeaume, according to Sonlard’s survey.”
He then proceeds to state the survey and patent to Brazeau, and as the latter was located by the government outside of the Labeaume tract, he held that the court had no power to change it. • i
In Mitchell vs. Handfield, supra, the court observes, Bates, J., delivering the opinion: “ In some cases of confirmations and for some purpose the title does not attach to any particular land until the survey is made; but in this case La-beaume’s claim before the board of commissioners was accompanied by a concession and Spanish survey, and the confirmation was, therefore, of a definite tract of land, to which the title immediately attached. It was ordered to be surveyed according to the concession, but the survey so ordered could only be a retracing of the lines run by the Spanish surveyor ; or even if there had been an error in the Spanish survey, such error might, and probably would have no effect to impair the definiteness of the tract confirmed. If there had been before the commissioners no evidence by which to identify the tract, the confirmation would operate as a grant which, because of vagueness, would attach to no land until it should be located by a United State survey. In this case, the confirmation, being of a definite tract of land, took immediate effect, and the subsequent proceedings, by survey and patent, relate to the time of the inception of the proceedings before the board of confirmation.”
These cases decided by the supreme court of the United States and by this court are clearly conclusive of the present, unless they have been overruled by the case of Magwire vs. Tyler, (8 Wall. 669).
The survey and patent to Labeaume have not been set aside. They date from. 1810, and the title under Lirette in 1816 is no defense. If it was fhe «intention of the supreme court in Magwire vs. Tyler to go farther than to sustain the Brazeau claim and destroy the Labeaume title, so far as it depended on surveys and patents, they have not so declared, and we decline to draw such inferences.
The judgment of the Circuit Court must therefore be reversed and the cause remanded.