Adams v. City of St. Louis

• Decision Date: 31 March 1862
• Citation: 32 Mo. 25
• Parties: DAVID ADAMS, Appellant, v. CITY OF ST. LOUIS, Respondent.
• Court: Missouri Supreme Court

32 Mo. 25

DAVID ADAMS, Appellant,

v.CITY OF ST. LOUIS, Respondent.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Land Court.

Action of ejectment upon an entry, and preemption by Sally Adams, under the preemption act of 1830, made with the register and receiver of the St. Louis land district, for part of what is known as Duncan's Island.

Defendant introduced evidence to show that in 1820 the land sued for was a sand-bar, subject to overflow in ordinary stages of water, and unfit for cultivation, and showed a conveyance from the State to the City of St. Louis, by an act passed in 1851, granting all right, title and interest of the State. Defendant also proved that the entry of Sally Adams had been set aside by the land department at Washington as illegally made.

J. W. Skinner, with T. F. Risk, for appellant.

The title of the United States was not divested by the act admitting the State of Missouri into the Union. It was not divested by any compact with the State.

It was not divested by the sovereign power of the State. (Johnson v. McIntosh, 8 Wheat. 543; Fletcher v. Peck, 6 Cranch, 142; Journal of Congress, 6, 123, 147; Howard v. Ingersoll, 9 How. 56; Chicago case, 18 How. 152.)

C. G. Mauro, for respondent.

It was decided in the cases of Kissell v. St. Louis Public Schools, 18 How. 19, and Jones v. Soulard, 24 How. 63, that the entry upon which the plaintiff's claim is based was void.

BATES, Judge, delivered the opinion of the court.

This is an action in the nature of an action of ejectment. At the trial the plaintiff gave evidence of an entry with the register and receiver of the land office at St. Louis of the land in question by Sally Adams, his ancestor.

The defendant gave evidence that the entry so made was cancelled by the commissioner of the general land office. Evidence was given tending to prove that before 1820 the land was a sand-bar in the Mississippi river unfit for cultivation, and was overflowed by ordinary high water, and had not been surveyed as public land.

The court, at the instance of the defendant, gave the following instruction: “If the jury find that the land now in controversy was, at the date of Missouri becoming a sovereign State, a mere sand-bar in the Mississippi river which began to be formed no earlier than 1814, and at the time when Missouri became such State was wholly unfit for cultivation; was overflowed at all times by ordinary high water; had not been surveyed, or in any way claimed as public land belonging to the United States; then prior to said admission no title was obtained under the preemption papers read in evidence, and the plaintiff cannot recover.” Judgment was given for defendant, and the...