59 U.S. 409 (1856), Stanford v. Taylor

Citation:59 U.S. 409, 15 L.Ed. 453
Party Name:JOSHUA R. STANFORD, PLAINTIFF IN ERROR, v. CLAY TAYLOR.
Case Date:April 25, 1856
Court:United States Supreme Court
 
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Page 409

59 U.S. 409 (1856)

15 L.Ed. 453

JOSHUA R. STANFORD, PLAINTIFF IN ERROR,

v.

CLAY TAYLOR.

United States Supreme Court.

April 25, 1856

OPINION

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Missouri.

The case is stated in the opinion of the court.

COUNSEL

Page 410

It was argued by Mr. Lawrence and Mr. Johnson, for the plaintiff in error, and by Mr. Williams, for the defendant.

Mr. Lawrence made the following points, namely:----

This survey was entirely erroneous, as plaintiff claims and offered to show, for reasons;

1. That the location was such that it did not include the possession as required by the commissioners' certificate.

2. It did not adjoin Robert in any way, but was put three arpens west of it.

3. It was made upon the grant to Mad. Papin, long before surveyed and patented to her representatives, and held by them.

4. It was in violation of the instructions of the surveyorgeneral.

This survey was, therefore, void in every respect that could affect the plaintiff's rights under the confirmation. A survey, if necessary at all, is not final or unalterable. If wrong, it may (most certainly should) be corrected by the courts.

Kittridge v. Landry, 2 Rob., Lou. 72; Latiolais v. Richard, 6 Mar. Lou. (N. S.) 213; Fay v. Chambers, 4 Lou. An. R. 481.

It may be conceded that a survey by a government officer, made in a case of a confirmation for land, of which there had been no possession, and which is undefined and floating, should possess something of the nature of conclusiveness. But where there has been possession, and that possession is shown, and the land confirmed is for a definite location 'conformable' to that possession, no act of survey ought to affect the rights of the confirmee. To say that it could, would be to place every man's titles at the mercy of an executive officer.

The act of surveying is merely ministerial in its character, and if performed in open violation of facts and law--as it was in this case--it goes for naught, and should be disregarded entirely.

The true effect and force of a survey is properly declared in the fourth instruction of circuit court of Missouri, in the case of West v. Cochran, when it is stated to be primæ facie evidence of its conformity to the confirmation. The...

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