Blumenthal v. Roll

• Decision Date: 31 October 1856
• Citation: 24 Mo. 113
• Parties: BLUMENTHAL, Appellant, v. ROLL et al., Respondents.
• Court: Missouri Supreme Court

24 Mo. 113

BLUMENTHAL, Appellant,

v.ROLL et al., Respondents.

Supreme Court of Missouri.

October Term, 1856.

1. The opinion of a surveyor as to the proper location of a concession or grant is inadmissible in evidence to determine such location.

Appeal from St. Louis Land Court.

William H. Cozens, as appears from the bill of exceptions, testified as follows: “That he is a surveyor of lands, and has been such since the year 1836. He was born here; knows the Grand Prairie common field-lots, and has become acquainted with them in the course of employment of a surveyor; that he located many lots in the southern part of said Grand Prairie common fields under engagements with the United States surveyor-general in the capacity of a deputy of that officer. During the progress of this work, he was required to make investigations of claims south of the St. Charles road, in the course of which he examined witnesses, among whom were the oldest residents of this place, from sixty-five to eighty years of age, who showed him the location of the earliest occupants of land in these common field-lots. Amongst these witnesses were Antoine Smith and Jacques Labbie. He knows the Chancillier tract; and from his knowledge of the location of lots in the Grand Prairie in early times, before the change of government, acquired in manner above stated, he believes the true position of it as located by Brown's survey given in evidence. North of Chancillier lies the lot formerly surveyed by Duralde for Keircereau, which I believe to be correctly located, joining Chancillier on the north. South of Chancillier's a lot is surveyed by the United States for Calve, as appears by the connected plat of the United States survey of the Grand Prairie common field-lots. [The plat here referred to is the same above mentioned, and the witness spoke of lots as located thereon, looking on the plat while testifying.] In the course of my regular employment as above stated, I had to examine the correctness of the survey of the Calve claim, and, in my opinion, it does not belong next south of Chancillier. The claim of Hervieux, of two by forty arpens, belongs there. The Hervieux tract is not located by the United States survey at any place. Next south of Hervieux the lot of Auguste Condé should be located. The claim of Calve, called for by his concession, should be located in the Cul de Sac, south of the Grand Prairie. The survey of Calve's claim by the United States was made in 1841 or 1842. The land surveyed for Calve, prior to its being surveyed, was open, unoccupied land, and never was located as a common field-lot for any one else, by survey by the United States, before it was surveyed for the Calve claim. I locate Hervieux next south of Chancillier, because he has such location by the calls in the archives. Condé is located south of where I think Hervieux belongs, and Condé's concession calls for Hervieux. Acting as a public officer, employed by the United States, I spent three years in locating and in making the investigations for locating the lots in the Grand Prairie common fields. The value of the land in dispute is worth from ten to fifteen dollars per month. I have made search in the proper offices for a concession to Calve for the land surveyed to satisfy his claim, and could find none. I know the Hervieux concession; it lies, in my opinion, south of Chancillier and corners on the land surveyed to Calve.”

Cross-examined. “Have known the Chancillier tract since 1837 or '8. As to the Kiercereau lot, as surveyed by Duralde and Marshall, on the...