City of Carondelet v. McPherson

• Citation: 20 Mo. 192
• Parties: THE CITY OF CARONDELET, Appellant, v. MCPHERSON, Respondent.
• Decision Date: 31 October 1854
• Court: Missouri Supreme Court

20 Mo. 192

THE CITY OF CARONDELET, Appellant,

v.MCPHERSON, Respondent.

Supreme Court of Missouri.

October Term, 1854.

1. The title of Carondelet to common, under the act of June 13, 1812, may be established without a survey, by proof of user prior to December 20, 1803.

2. As to the power in the general land office to set aside an approved survey made prior to July 4, 1836, and within what time it must be exercised, if it exists.

3. If a town, through the proper authorities, consents to, accepts and acts upon a survey of its common as correct, it will be estopped from afterwards claiming, as common, land outside of the survey, against a party having acquired a title to it upon the faith of the correctness of the survey.

Appeal from St. Louis Court of Common Pleas.

This was an action brought by the city of Carondelet in 1852, for the possession of a tract of land bounded south by the northern boundary of the city of Carondelet, as incorporated in 1851, north by the St. Louis common, as surveyed, east by the Mississippi river, and west by the Carondelet common fields. The plaintiff claimed the land as a part of the common confirmed to the inhabitants of Carondelet by the act of congress of June 13, 1815, although it was not within any survey of the common. The defendant claimed under a patent from the state of Missouri, dated February 27, 1850, issued in pursuance of an act of assembly. (Sess. Acts 1849, p. 64.) The land was located in the manner pointed out by said act, as a part of the 500,000 acres granted to the state by an act of congress approved September 4, 1841. The substance of the oral and documentary evidence offered by the respective parties at the trial is stated in the opinion of the court. Under an instruction, which is also set out in the opinion, there was a judgment for the defendant below, from which the plaintiff appealed. The cause was argued in this court by Mr. Casselberry for appellant, and Mr. Todd and Mr. McPherson for respondent.

Casselberry, for appellant, made the following points among others:

I. As to the definition of common in the Spanish law he cited 1 Moreau & Carleton's Partidas, p. 328; Chouteau v. Eckhart, 2 Howard, 373; 2 White's Recop. p. 47, 100, 118.

II. The act of June 13, 1812, did not require that the common should be inhabited, possessed, cultivated or used as common. If it was claimed as such by the people interested, and recognized as such by the existing government, to be used at any future period, when necessity or convenience required, this is all the law of 1812 required.

III. The instruction given by the court, assuming that a survey by the United States is necessary in order to vest a complete title in the plaintiff, is directly in opposition to the decision of the Supreme Court of the United States in the case of Chouteau v. Eckhart, 2 Howard 344. The only object of a survey of a confirmed claim is to locate the land where the boundaries are uncertain; but when the boundaries can be ascertained, a survey is unnecessary. (Smith v. United States, 10 Peters, 331; United States v. Aredondo, 13 Peters, 134.) In this case, the boundaries of the land are very definite. It is bounded on the west by the common field, on the south by the town, on the east by the river, and on the north by a line running west from the Sugar Loaf. This line is clear and definite, as shown on the plats and by the evidence. This court has often decided that no survey is necessary in the case of a town or village lot or common field lot. Mere verbal proof of a confirmation is sufficient. The common was granted by the same law and the same section, and why require a survey?

IV. The survey of Brown, as shown on the plat itself, does not include all that is “claimed,” as required by the act of 1824. All of the common north of the town should have been surveyed separately from that south of the town.

V. There is no estoppel against the plaintiff. To pass an estate by estoppel, the party must have power to pass it by a direct conveyance. (Dugal v. Fryer, 3 Mo., 31.) Until the city of Carondelet was chartered in 1851, the corporate authorities had no power to make any other disposition of the common than to lease it; and as they had no power to convey in fee simple, they could do no act that would operate as an estoppel, any further than in relation to leases; and as the defendant denies that he is a tenant, he cannot set up an estoppel of any kind. The estoppel of a deed only extends to parties and privies thereto, and not to strangers. The defendant would be a stranger to any estoppel of the kind insisted on. (Cottle v. Snyder, 10 Mo. 763.)

Mr. Todd, for respondent, relied upon the following points:

I. Upon the law and evidence, the instruction given by the court below in this case was correct. 1. The appellant has no title to commons, except by virtue of the act of congress of June 13, 1812. 2. Under that act, she has no title to commons, unless supported by a rightful claim, or by a valid United States survey designating and severing them from the public domain. 3. She can have no rightful claim to commons except by a concession, or grant or permission from the Spanish government, and of this her highest and sole admissible evidence is the reply of governor Trudeau to the petition of Gamache, and Soulard's official survey, by which her common is located south of her. To this she is limited by her own constituents and original founders, in their acts of notice of their claim to the recorder of land titles, and the subsequent presentment of their claim before the old board of commissioners. Against this evidence, parol testimony is inadmissible. 4. No United States survey of the common embraces the land sued for.

II. The survey of Rector, and of Brown as a retracing thereof, is conclusive upon the plaintiff as to the location of her commons. (See acts of congress providing and regulating surveys from 1785 to 1836.)

III. At least, the survey is conclusive as against the United States and Carondelet, in favor of third persons deriving title from the United States outside of such survey, after the approval thereof by the surveyor general, and before its legal cancellation, if subject to cancellation at all, and in fact cancelled. (3 Howard [U. S.] 773, 787, and cases cited therein; 8 Id 313-314; 5 La. Ann. 510, and cases there cited; 3 Peters, 96.)

IV. The commons confirmed to Carondelet by the act of June 13, 1812, are to be presumed to embrace her claim therefor in location and extent filed by her before the old board of commissioners, and no other in the absence of further legal action in her behalf by the United States.

V. In the absence of the evidence of the plaintiff's claims for commons, as filed before the old board, and of duly authorized surveys, the plaintiff has no title or property to commons of any standing in a court of justice, under the laws of this State. The principle of this proposition is founded upon the vagueness and uncertainty of both the location and of the quantity of the commons.

VI. The record shows an estoppel upon Carondelet from claiming any land between the south line of the St Louis common, and the north line of Brown's survey of her own. As to the objection of a want of privity it may be answered that defendant occupies the position of the United States, between whom and plaintiff there was a direct privity. As to the objection that the inhabitants of Carondelet had no incorporation competent to be estopped until 1851, it may be answered, 1. That they had from 1825. (Acts of 1825, p. 211, 212, sec. 1.) 2. If not, still the inhabitants could be estopped in their collective capacity. They are to be regarded as a quasi corporation, a political or municipal body, a town or village; not as so many separate and independent individuals, holding their commons as tenants in common or joint tenants. (Bird v. Montgomery, 6 Mo. 523.)

GAMBLE Judge, delivered the opinion of the court.

The plaintiff claims the land in controversy as a part of the commons of the village of Carondelet, confirmed by act of congress of June 13, 1812. At the trial, no grant of commons was produced by the plaintiff and no survey Spanish or American. The reliance was upon the proof by witnesses, that at a period before the change of government, the authorities of the village of St. Louis and Carondelet met together to mark the line between their respective commons, and that this meeting was by the direction, or with the knowledge and approbation of the lieutenant governer, and was attended by the surveyor general; that, at the meeting, it was agreed to run the line from a noted mound called the “Sugar Loaf,” on the bluff of the Mississippi river, to the line of the common fields of Carondelet, or, as some of the witnesses say, to the north-east corner of those fields; that the line was accordingly run by the surveyor general and cut out and marked by monuments; that a fence was made upon that line, and the inhabitants of the two villages used the land on the different sides as their respective commons. The claim of the plaintiff was entirely rested upon this parol evidence.

On the part of the defense, documentary evidence was given of the claim of Carondelet to commons, as exhibited before the first board of commissioners. The notice of the claim was in these words: “Take notice, that, we, the inhabitants and settlers of the village of Vide Poche in the district of St. Louis, claim, title to 6,000 arpents of land, situated adjoining said village, by virtue of a concession from Don Zenon Trudeau, lieutenant governor of Upper Louisiana, dated the 7th December, 1796.” This notice was addressed to the recorder of land titles, and was accompanied with the documents which are set out in the case of Dent v. Bingham, 8 Mo. 585. It may be necessary to say that there are no boundaries given either in the supposed grant, or any survey filed with the claim, which applys to land north of the village. The...