Biehler v. Coonce

• Decision Date: 31 July 1845
• Citation: 9 Mo. 347
• Parties: BIEHLER AND OTHERS v. COONCE.
• Court: Missouri Supreme Court

9 Mo. 347

BIEHLER AND OTHERS

v.COONCE.

Supreme Court of Missouri.

July Term, 1845.

ERROR TO ST. CHARLES.

WM. M. CAMPBELL, for Plaintiff. 1. The jury must be supposed to have taken the law from the court, and if misled by the court as to the law that governs the case, they erred in a matter of law. 2. The statements of the judge in this case, were calculated to mislead the jury as to the construction of the law and the legal right of the plaintiff to recover. 3. The evidence in this case affords no warrant for the jury to find that McDonough street ran through the land possessed by defendants below, unless the jury were misled by the illegal declaration that it might have been a street in contemplation.

BATES, for Defendant.

NAPTON, J.

Felix Coonce, the defendant in error, brought an action of ejectment to recover a lot in the town of St. Charles, against Biehler, Grater & McIntosh, and Emilie Chauvin, administratrix of F. D. Chauvin, deceased, was admitted to defend the suit. The lot was described in the declaration, as 240 feet French measure in front, by 300 feet in depth, bounded on the west by Main street, on the north by McDonough street, on the south by Chauncy street, and on the east by the sand bar of the Missouri river. A trial was had in the St. Charles Circuit Court, in 1839, and a verdict for the plaintiff for 79 feet 3 inches on Main street, running with that breadth to the river. Upon the application of the defendant below, a new trial was granted, and a similar verdict was again found upon the second trial, upon which the court gave judgment.

The plaintiff, to support his claim, gave in evidence a certificate from the recorder of land titles, Theodore Hunt, dated 7th May, 1825, for the lot described in the declaration, which certificate was given by virtue of the act of Congress of 1824, supplementary to the act of 13th June, 1812. The lot was confirmed to John Coonce, and the plaintiff then exhibited his deeds showing a derivative title from the admitted heirs of John Coonce. The plaintiff further proved the possession by the defendants, Biehler, Grater & McIntosh, of part of the lot, as tenants under Emilie Chauvin. The testimony of Cunningham, the county surveyor of St. Charles county, was also introduced, and a survey which said Cunningham had made by order of the court in this case. The survey is not, however, to be found in the bill of exceptions. This witness testified that he had at different times made partial surveys of the streets and lots in the town of St. Charles, by order of the board of trustees of said town, and occasionally at the instance of private individuals; that he had never seen any official survey of the town, nor has any such plat or survey been in the possession of the board of trustees since he has been living in the place. The plan pursued by him in surveying has been to find some point generally acknowledged and recognized in said town, and thence to run by the best statement of courses and distances he could obtain, until he found the lot or street desired. The witness had seen plats of surveys of the streets of said town, said to have been made by Joseph Evans and Nathan Boone; that there was formerly in possession of the board of trustees a plat which was on a blank leaf of a record book of said board, which had the streets laid off on it, and which said board used and recognized in doing business for said town. Witness presumes the plat was made by said Evans about twenty years since, but does not know it; that the plat of Boone is nearly a copy of said plat of Evans. Witness used these plats in his surveys of the town. The witness then stated that the survey made in the present case was made upon these data, and that if his premises were correct, McDonough street was 69 feet 3 inches north of the line claimed by the defendants as the boundary of their lot. That by this survey, McDonough street would run through two of the houses of defendant; that the 69 feet 3 inches which would fall on the plaintiff's lot, would also take in one of the brick tenements claimed by defendants, and some other frame buildings. Witness in making surveys, sometimes departed from the plat, and was regulated by the confirmations of the squares; most generally, however, he pursued the plat without reference to the size of the squares or lots, as called for by the confirmations, the breadth of the squares in St. Charles, not generally corresponding with the breadth confirmed to the proprietors. The distance between the streets as used, is generally much greater than the distance called for in the confirmation of the squares and half squares; the squares being generally confirmed as having 240 feet. French measure, in front, whereas some of them are actually more than 400 feet in front. The witness thought that if a survey was commenced at either end of the town, or at any given point therein, and the streets and squares laid off according to the front called for in the confirmation, the position of the cross-streets would be entirely changed, and would not anywhere correspond with the streets and squares as now used and recognized.

Another witness on the part of the plaintiff, testified in relation to Evans' survey, and stated that no street or road had ever been used within his knowledge (and he came to St. Charles in 1809), at the place where McDonough street is claimed to be by the plaintiff; but that the plat of Evans had been always referred to by the board of trustees (of which he had been twice a member), whenever the position of the streets, &c., of St. Charles was desired to be ascertained.

The defendant offered in evidence a copy of an extract from the registry of confirmations by the recorder of land titles, being a confirmation to Charles Tayon, on the 6th April, 1825, of a lot in the town of St. Charles, bounded on the south by McDonough street, west by Main street, north by Water street, and east by the Missouri river, 240 feet front. This certified copy was rejected. Copies of deeds from Tayon to W. J. Devore, and from Devore to D. McNair, and from McNair to Chauvin, were also offered in evidence, but rejected.

The defendant proved by Thomas Gilmore, that as far back as 1801, Charles Tayon lived on the premises now claimed by Coonce's representatives; that his inclosure reached within a few yards of the branch called Blanchette, and between it and the branch there was a road used to go down to the river, the ferry landing being immediately east of Tayon's house; that this inclosure of Tayon, which embraced his dwelling house and several out-houses, garden, &c., extends nearly to the spring branch on the northern extremity of his lot; that the buildings and improvements at that time appeared to be old; that said...