City of Carondelet v. City of St. Louis

• Decision Date: 31 March 1860
• Citation: 29 Mo. 527
• Parties: CITY OF CARONDELET, Appellant, v. CITY OF ST. LOUIS, Respondent.
• Court: Missouri Supreme Court

29 Mo. 527

CITY OF CARONDELET, Appellant,

v.CITY OF ST. LOUIS, Respondent.

Supreme Court of Missouri.

March Term, 1860.

1. Although an approved United States survey of the common confirmed to the inhabitants of a town or village by the act of June 13, 1812, is only prima facie evidence of the true location and extent of such common as against such town or village, yet if such survey should be accepted by such town or village, it would be conclusive and binding upon it as to the location and extent of the common confirmed, and it and the inhabitants thereof would be estopped to claim as a part of the commons of said town any land lying outside of said survey.

2. It is for the court to say what facts constitute an acceptance by a town or village of a survey of common, and work an estoppel.

3. The estoppel to be binding must be mutual; if the United States are not bound by the survey, neither is the claimant of common.

4. The existence of valid private claims within the limits of a survey of common would not be inconsistent with an estoppel as between the government and the village or town claiming common.

5. A survey of common, if accepted at all, must be accepted as an entirety; it cannot be accepted in part and rejected in part.

Appeal from St. Louis Land Court.

This cause has heretofore been before the supreme court. (See Carondelet v. St. Louis, 25 Mo. 448.) On the trial an immense mass of evidence was adduced. It is deemed unnecessary to set it forth. The court, at the instance of the plaintiff, gave the following instructions: “1. All the right, title and interest of the United States in and to the commons of Carondelet was vested in the inhabitants of Carondelet on the 13th of June, 1812, according to the extent and boundaries of the said commons as the same existed and had been claimed and used by the said inhabitants in common prior to and until the 20th day of December, 1803.”“22. If the jury find for the plaintiff, and further find that the defendant had knowledge of the plaintiff's claim five years before the commencement of this suit, then the plaintiff is entitled to recover as damages for rents and profits the value of such rents and profits for five years before the commencement of this suit and from the commencement of this suit up to this date; and the jury shall further find the value of the monthly rents and profits of the premises in question.”“24. If the jury find from the evidence that before, at the time of, and after, the survey of Brown of the commons of Carondelet of 1834, the board of trustees of Carondelet claimed the commons of Carondelet on the north of the village to extend to the Sugar Loaf; and that said corporate authorities of Carondelet did not accept the said survey of 1834 as the true limit of the commons of Carondelet on the north, but continued from the time of said survey of 1834 to claim as their commons the premises in controversy as a part of their commons until the commencement of this suit, then the plaintiff is not estopped by said survey of 1834 from recovering the premises sued for in this action, if the said premises lie within the commons of Carondelet as used by the inhabitants of the village before the 20th day of December, 1803.”

The court, at the instance of the defendant, gave the following instructions: “1. If the jury believe from the evidence that the survey, made in 1834 by Joseph C. Brown, of the common of Carondelet, was within the same year returned to the office of the surveyor general of public lands of Illinois and Missouri, and was in that year approved by such surveyor general, and that that survey is now the approved survey of said common as recognized by the Land department of the United States; and if the jury further find that the board of trustees of said town of Carondelet were notified by said Brown, before said survey was made, that he had received his instructions, and would commence the work at a time named; that said board of trustees appointed a committee to superintend the survey; that afterwards said committee reported to said board of trustees that Joseph C. Brown had completed the survey of the common, and that the duties assigned them were duly performed; that said trustees ordered the persons employed in said survey to be paid, and appointed Joseph Chattillon to set up a stone every half mile on the line of said commons where necessary in order to designate the line properly; and if the jury further find that afterwards and within the year 1834 the board of trustees of said town of Carondelet obtained a plat of said survey of the commons and a confirmation certificate issued by the recorder of land titles and based upon said survey, and ordered said survey and confirmation certificate to be filed in their office, and directed the register to have the survey framed for the use of the town; and if the jury further find that afterwards in the year 1839 and subsequent thereto the board of trustees of said town of Carondelet caused the land included within said survey to be subdivided into lots or tracts, conforming in such subdivisions to the exterior lines of said survey as the boundary of the commons, and did proceed to dispose of said lands according to said subdivisions by leases for ninety-nine years, renewable; and if the jury further find that the corporation of said town of Carondelet, in different suits at law in which the title to the commons of said town came in question, did exhibit and give in evidence the said survey as the regular and approved survey of the commons of said town; and if the jury further find that the said corporation of Carondelet, for fifteen years after the said survey was approved and recorded, made no application to the Land department of the United States to have said survey set aside or changed--then these facts are in law an acceptance of such survey by the corporation of Carondelet; and such acceptance estops the plaintiffs from claiming as a part of the commons of said town any land lying outside of said survey. 10. But if the jury believe, from the evidence, the facts set forth in instruction number one given for defendant to the jury, then no claim of commons by the corporate authorities of Carondelet outside of the survey by Brown of 1834 should be regarded by the jury, unless made and insisted on in the Land department of the United States, and as a claim upon or against the United States for commons outside of said survey.”

Many instructions asked by the plaintiff were refused by the court. It is deemed unnecessary to set them forth. The jury found for the defendant.A. Leonard and B. A. Hill, for appellant.

I. Carondelet has shown by acts of possession a legal title to the land in controversy under the act of Congress of June 13, 1812, as being part of their commons, and this title must prevail unless it has divested itself of it by some act of its own competent to produce that effect, or unless a paramount adverse title has been shown. The inhabitants were in Spanish times in possession of part of the royal domain as commons of their village. It may be admitted that the possession of commons by the French and Spanish towns was a mere precarious possession at the will of the king. (3 Mart. 307, 673; 6 Mo. 511.) The act of 1812 turned, proprio vigore, this actual possession into an ownership. A mere condition of fact became by that act a condition of right. (6 Mo. 511; 2 How. 345; 4 How. 421; 16 How. 494; 17 How. 416; 2 Mo. 192; 25 Mo. 448; 23 Mo. 532.) It is not necessary that there should have been a formal grant of commons, or a designation by survey of a specific piece of ground to be used as commons, or that the land should fall within the outboundary line as run.

II. Carondelet has not divested herself of her original title. The doctrine of Menard's heirs v. Massey, 8 How. 314, in reference to the acceptance of a survey, is not applicable to the present survey; and if it be, the question of acceptance, according to Carondelet v. McPherson, 20 Mo. 203, in which case this doctrine of acceptance was first applied to such a survey as the present, is a question of fact, and not a question of law to be determined by the court, as was done in the present case by the court below. In Menard v. Massey the grant was of a quantity of land at a designated locality, and no title passed until the survey was made. When the survey was made the claimant took the land embraced in it, or he took nothing. The reason of the rule is not applicable to such a survey as the present. Assuming, however, that this doctrine in Carondelet v. McPherson is to stand as the law, it is part of that doctrine that the question of acceptance is one of fact and not of law. Here the question of acceptance was not only withdrawn from the jury, and the law ruled to be, that if the particular facts recited in the defendant's first instruction were true they constituted an acceptance of the survey as a matter of law regardless of all the other qualifying acts of the party in relation to the same matter; but the court went even beyond this, and declared in substance that if the recited facts were true the plaintiff was estopped from recovering any land outside of the survey, although Carondelet had always refused to accept the survey as fixing the true limits of the commons on the north, and had always continued to claim the land now sued for as a part of the commons, provided this claim had not been made and prosecuted before the Land department of the United States. (See 12 Wend. 130; 16 Wend. 285; 7 Ind. 460; 6 Fost. 482.) The common law doctrine of estoppel can not be invoked in the present case. That doctrine is only applicable where there has been an admission by word or deed, upon which another has acted, and which can not be retracted without damage to the party that has acted upon the faith of it; and even then it is an estoppel only in favor of the party who has acted upon the admission and not in favor of others....