Barry v. Blumenthal

• Citation: 32 Mo. 29
• Parties: JAMES G. BARRY, Appellant, v. AUGUSTUS A. BLUMENTHAL, Respondent.
• Decision Date: 31 March 1862
• Court: United States State Supreme Court of Missouri

32 Mo. 29

JAMES G. BARRY, Appellant,

v.AUGUSTUS A. BLUMENTHAL, Respondent.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Land Court.

For statement see the opinion of the court.

Casselberry, for appellant.

I. The plaintiff claims title by intermediate conveyances from William Russell, to whom the land in controversy was confirmed by the act of Congress of April 29th, 1816, as a “lot in Carondelet.” The defendant claims by intermediate conveyances from the corporation of the town of Carondelet; and by a far-fetched construction of the United States surveys of the common of Carondelet, the defendant pretends that said surveys are evidence against the plaintiff, to show that the land in controversy was confirmed to the town, as common, by the act of Congress of 1812, because said surveys include the town.

To rebut the pretended inference that the land in controversy was common, the plaintiff read in evidence a connected plat of the town of Carondelet, compiled by the surveyor general. This plat shows the location of the town, as it existed during the Spanish government, and it also shows that the premises in controversy are within the town, as it existed prior to December 20th, 1803.

There could not be common of a town without there being at the same time a town, any more than there could be two hills without a hollow or valley between them. The surveys of the common for the town were for the benefit of the proprietors of the town, and not for their destruction. In the case of Primm v. Haren, (27 Mo., p. 209,) this court remarked that “a claim for commons within the boundaries of a survey, is not inconsistent with the idea of private claims within its limits. Then the fact is known that a claim to commons is not necessarily hostile to private claims within its limits.”

In addition to the connected plat of the town alluded to, the plaintiff read in evidence five confirmations of town lots and the surveys thereof. The lots therein confirmed respectively were town lots in the town of Carondelet during the Spanish government. By reference to the surveys of these confirmations and the connected plat of the town, it will be seen that they surround the premises in controversy, plainly showing that the premises were obviously within the ancient town, and that the land in dispute cannot, with any degree of seriousness, be considered as common. These five confirmations are prima facie evidence. See cases of Vasquez v. Ewing, 24 Mo. 38; Biehler v. Coonce, 9 Mo. 347; Macklot v. Dubreuil, 9 Mo. 477; Boyce v. Papin, 11 Mo. 16; McGill v. Somers & McKee, 15 Mo. 80; and Carondelet v. St. Louis, 29 Mo. 527. The connected plat of the town, above alluded to, is also evidence. See the case of Fine v. Schools, 30 Mo. 166.

II. The common ought to have been surveyed in two separate tracts. One survey beginning at the upper end of the town and running northward, and the other survey beginning at the lower end of the town and running southward; and all vacant or unconfirmed pieces of land between the two surveys ought to have been assigned to the Schools, under the second sections of the acts of 1812, 1824, and 1831. If this had been done, the trouble which has occurred in this suit would never have happened.

We admit that those claiming under the act of Congress of the 4th of July, 1836, cannot dispute the common title, because the second section of the act provides that it shall not operate as a confirmation of any land which had been “previously located under any law of the United States, or had been surveyed and sold by the United States.” As the common was surveyed, and the survey approved in 1834, the land therein had emphatically been “previously located under a law of the United States,” according to the decision of the Supreme Court of the United States, in the case of Les Bois v. Bramell, (4 How. p. 463.)

The difference, therefore, between the act of 1836 and all of the prior acts confirming lands, is very broad, plain and obvious. The prior acts (including the act of 1816, which confirmed the land in dispute,) make no such exceptions or reservations as are made in the act of 1836, nor are there any lots in the old French or Spanish town confirmed by the act of 1836. The acts of 1812 and 1816 confirm the lots and lands therein alluded to in a direct and positive manner, without any exceptions or reservations. At the time of the passage of the respective acts of 1812 and 1816, the rights of the confirmees vested, (but were not complete until their survey, where the boundaries were indefinite,) and could not be divested by the surveyor general in making the survey of the common. The powers of the surveyor general, in this respect, were amply explained by the Supreme Court of the United States in their decision last winter, in the case of the Commissioners of the Sixteenth section against John B. Hortez and others, in which the court said that the duties of the surveyor general are of “purely a ministerial function. His neglect could not suspend the vesting of the titles granted, much less his blunders forfeit them.”

III. The survey of the common is binding and conclusive evidence on the corporation and on the United States, because they are parties to it, and are respectively estopped and bound thereby. (See Menard v. Massey, 8 How. 293; Kissell v. Schools, 18 How. 19, and Carondelet v. St. Louis, not yet published.) And the survey of the common is binding and conclusive on mere squatters, or intruders, or trespassers, and others having no title acquired from the United States, because, having no title acquired from the United States, they are not in a condition to dispute the survey. If the survey is wrong, they are not injured, as they have no rights to be injured, and no one is allowed to complain in a court of justice in any case, except those who are injured. (See Boyce v. Papin, 11 Mo. 16; and Archer v. Bacon, 12 Mo. 149.) But a person holding title under a valid confirmation in the old town, can dispute the survey of the common, because he has a lawful right, recognized by Congress, of which he cannot be deprived by the surveyor general. (See the case of Primm v. Haren, 27 Mo. 209; and the case before mentioned of the Commissioners of the Sixteenth section v. Hortez and others, not yet published.)

The common was surveyed and approved in 1834, and none of the private confirmations were surveyed or approved before 1835. From the year 1835 to 1855 the surveys have been from time to time made, recorded and approved, being a space of more than twenty years, as appears from the surveys read in evidence in this case.

The conclusion, therefore, is correct to which the Supreme Court came to, in the case of Primm v. Haren, (27 Mo. 209,) that the survey of the common was never intended to interfere with any rights under confirmations. The court below, therefore, erred in not giving the fifth instruction asked for by the plaintiff, and in giving the first instruction asked for by the defendant.

IV. We contend that the court below erred in not giving the fourth instruction asked for by the plaintiff, the effect of which is, that the statute of limitations did not begin to run against the plaintiff until the year 1854, when the survey (125) was made of the land in suit, on account of the boundaries being so uncertain that the title attached to no land until the survey defining the boundaries was made; and, inasmuch as the survey was not made ten years before this suit was brought, the statute of limitations had no application in this case.

That a survey was necessary to define the boundaries there can be no doubt. This can be easily seen by reference to the papers in this case. The notice of claim filed by Wm. Russell, dated November 12, 1812, calls for Second street on the east and the field on the west, but the north and south boundaries are not given.

It has been frequently decided by the Supreme Court of the United States that where the locality or boundaries of a confirmation are indefinite, or cannot be ascertained without a survey, the title attaches to no land until a survey is made. (See Massey v. Menard's heirs, 8 How. 293; West v. Cochran, 17 How. 403; Stanford v. Taylor, 18 How. 411; Lafayette's heirs v. Kenton and others, 18 How. 197; Carondelet v. St. Louis, not yet published; and Magwire v. Tyler and others, not yet published.)

V. The first instruction asked for by the defendant ought not to have been given, because there was no evidence to support it. The land is within the town as it existed prior to 1803. At one time it had a barn on it, and at another a house, and seems always to have been treated as a town lot in the town.

VI. The second instruction asked for by the defendant ought not to have been given, because the land was confirmed to Russell, and not to Bombardier, and the deed from Bombardier to Easton is void for want of certainty as to the description of the lots conveyed. The United States held the title and granted it to Russell, and not to Bombardier, and we are governed exclusively by the grant to Russell. The effect of the instruction was to go behind a confirmation and treat the title of Bombardier as valid, when he never had any thing more than an inchoate right, of no standing in a court of law or equity.

VII. The fifth instruction asked for by the defendant ought not to have been given for many reasons. It allowed the statute of limitations as a defence, which ought not to be allowed, for the reasons hereinbefore given. It allowed the jury to determine whether the confirmation by the United States to Russell had boundaries or not, which is a question of law, to be determined by the court. What boundaries are, is a question of law for the court to decide, and where the boundaries are, is a question of fact to be decided by the jury. (See the case of Whittelsey v. Kellogg, 28 Mo. 404.) It allowed the jury to ascertain the boundaries of the land in suit. The ascertaining and fixing...