Chouteau v. Eckert

• Decision Date: 31 May 1841
• Citation: Chouteau v. Eckert, 7 Mo. 16 (Mo. 1841)
• Parties: CHOUTEAU v. ECKERT.
• Court: Missouri Supreme Court

7 Mo. 16

CHOUTEAU

v.ECKERT.

Supreme Court of Missouri.

May Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY.

LAWLESS, BOGY and HUNTON, for Appellant.The jury found a verdict for defendant.It is contended that the Judge erred in the above instruction, in this: 1.That a matter of law was left to the jury, to-wit: whether a survey had been made by the authority, and under the orders of the Spanish Lieutenant-Governor of Upper Louisiana, of lands for commons, so as to include the premises in controversy.2.That the above instruction excludes from the jury all consideration of the original grant of said land to the said plaintiff, and the confirmation of said grant, by the act of 1836, to plaintiff, by Congress of the United States.3.That it is manifest from the above evidence spread on the record on each side, that: 1.The government of Spain, nor any other in Upper Louisiana, granted as commons the said tract in question to the town of St. Charles, but on the contrary refused to grant that, or any other land to the town of St. Charles as commons.2.That said survey is not only not made under any authority of a Spanish Lieutenant-Governor of Upper Louisiana, but in direct and manifest disregard and violation of the special order and decree of that officer, touching the land adjacent to the town of St. Charles, and including the tract in controversy.3.That said instructions wholly disregard the treaty of cession, the law of nations, the decisions of the board of commissioners, the act of 4th July, 1836, and the survey of the plaintiff granted lawful property under said act.The counsels for plaintiff will rely in argument on the treaty of cessions; the law of nations; the divers acts of Congress; the act of 1812, § 1; the act of 1832; and 3d and 4th July, 1836; the decision of the United States Supreme Court, in 6 Peters, in the cases of Chouteau, Delassus, Mackay and Soulard, on appeal from Judge Peck, and many other cases; and also that of Newman v. Lawless, 5 Mo. R. 236.

H. R. GAMBLE, for Appellee.The documentary commons title is the same as in Bird's case; and I rely upon the decision in that case, and upon the general principles in relation to such titles, as contained in my brief now before the court, in the case of Mackay's Heirs v. Dillon.

NAPTON, J.

This was an action of ejectment to recover a tract of land lying near the town of St. Charles.The judgment of the Circuit Court was for the defendant.The title of the plaintiff...