City of Carondelet v. City of St. Louis

• Decision Date: 31 October 1857
• Citation: 25 Mo. 448
• Parties: CITY OF CARONDELET, Appellant, v. CITY OF ST. LOUIS, Respondent.
• Court: Missouri Supreme Court

25 Mo. 448

CITY OF CARONDELET, Appellant,

v.CITY OF ST. LOUIS, Respondent.

Supreme Court of Missouri.

October Term, 1857.

1. The act of Congress of June 13th, 1812, proprio vigore, vested in the inhabitants of the various towns and villages designated in the first section of said act the absolute legal title to the common possessed and used as such by them respectively prior to December 20th, 1803.

2. To enable the inhabitants of a town or village designated in said act to assert title to, and recover possession of, land as common confirmed by said act of June 13th, 1812, no United States survey is required; proof of possession and user as common prior to December 20th, 1803, is sufficient.

3. The approved U. S. survey of the common of St. Louis is not conclusive as against the inhabitants of the adjacent town (now city) of Carondelet. It may be shown in their behalf that land embraced within said survey was used and possessed prior to December 20th, 1803, as common of Carondelet; and that, too, although it is not embraced within the U. S. survey of the common of Carondelet.

4. An approved United States survey of the common confirmed to the inhabitants of a town or village by the act of June 13th, 1812, is prima facie evidence of the true location and extent of such common.

5. Such survey would not, however, be conclusive and binding upon the inhabitants of such village unless accepted; it might be shown that it had never been accepted, and that it was incorrect.

6. No formal act is necessary to constitute an acceptance; it may be inferred from various acts and circumstances; and it is the province of the court to declare to the jury, as a matter of law, the legal effect of such acts and circumstances.

Appeal from St. Louis Land Court.

The city of Carondelet seeks in this action to recover possession of certain lots of ground in the possession of the city of St. Louis. Carondelet asserts title to said lots under the act of Congress of June 13th, 1812, as a portion of the common confirmed to her by said act. The city of St. Louis also asserts title thereto as common confirmed to her by said act of Congress.

At the trial the testimony of sundry aged persons (Antoine Smith, Pierre Chouteau, Jr., Amable Chartrand and Paul Robert), familiar with the location and boundaries of the commons of Carondelet and St. Louis, as possessed and used by said villages, respectively, prior to December 20th, 1803, and since, was introduced and relied upon by plaintiff. From this testimony it appeared that during the Spanish domination, and at the time of the change of government, the recognized boundary line, separating the common of St. Louis from the common of Carondelet, commenced at a point on the bank of the Mississippi river, known as the “Sugar-loaf,” and from thence ran to the northeast corner of the common field of Carondelet; that previous to the change of government there had been a fence running from the “Sugar-loaf” to the said corner of the said common field; that the inhabitants of St. Louis used as common the land lying north of said boundary line and fence, while the inhabitants of Carondelet possessed and used as common the land lying south of said line, including the land in controversy. The plaintiff also introduced in evidence an order of the St. Louis Court of Common Pleas, dated November 9th, 1819, incorporating the town of St. Louis upon petition of the inhabitants, and designating a line running due west from the “Sugar-loaf” as the southern limit of the corporation, and ordering the metes and bounds to be surveyed and a plat thereof recorded; also a survey of the limits of the town as thus incorporated, made in the year 1820 by Joseph C. Brown, in execution of said order, which bounded said town by a line running due west from the “Sugar-loaf.”

The defendant then introduced in evidence the approved U. S. survey, No. 3125, made in the year 1832, of the St. Louis common. This survey includes the land in controversy in the present suit--the south line of the common of St. Louis being located south of the “Sugar-loaf,” and south of the land in controversy. Defendant also introduced in evidence the survey (No. 3102) of the common of Carondelet, made in the year 1834 by Joseph C. Brown, deputy surveyor of the United States. This survey did not include the land in controversy.

The plaintiff then offered in evidence the instructions for a survey of the common of St. Louis, dated November 18th, 1832, given by Elias T. Langham, surveyor-general of Illinois and Missouri, to Joseph C. Brown, deputy surveyor; also a survey of St. Louis common, made by James Mackey in the year 1806, and purporting to have been made at the request of the inhabitants of St. Louis, and offered to prove that it did not include the land in controversy; also offered to prove that the inhabitants of Carondelet always claimed the land north of the town or village of Carondelet to the “Sugar-loaf” and the northeast corner of the common field of Carondelet as common of Carondelet down to the year 1852; that up to the year 1836 the said land lay open and was used for pasturage and wood by the inhabitants of Carondelet; that when Brown surveyed the common of Carondelet in 1834, the inhabitants of Carondelet claimed their common's line on the north from the “Sugar-loaf” to the northeast corner of the common field of Carondelet; that said Brown ran said line [from the “Sugar-loaf” to the northeast corner of the common field] as the north line of the common of Carondelet in the presence and under the claim of a great number of the inhabitants of Carondelet; that said Brown returned the said north line with the survey of the common field, and fraudulently omitted to return it with the survey of the common of Carondelet, and fraudulently returned another line three quarters of a mile south of said true line so claimed and run as aforesaid; that the inhabitants of Carondelet were people who spoke the French language and not the English; that they were a primitive, innocent people, not acquainted with the language, or laws or customs of the United States; that they believed that their line had been run on the north by the surveyor of the United States, and that they were the parties in the rightful possession; that they protested against the encroachments of St. Louis at various times, from 1836 to 1853, and claimed the said land before the common council of St. Louis many different times, and before the land department of the United States, as the land of Carondelet, before the bringing of this suit; that no copy, or plat or report of Brown's survey of the common of Carondelet was sent to or returned to the commissioner of the general land office at Washington, until the 22d day of June, 1839. Plaintiff also offered in evidence various documents, consisting of the official correspondence of the surveyor-general of Illinois and Missouri, the solicitor of the general land office, the commissioner of the general land office, and the secretary of the interior, tending to show that Brown's survey had been disapproved by the commissioner of the general land office, and the secretary of the department of the interior. The plaintiff also offered to prove that the inhabitants of Carondelet protested, before the commissioner of the general land office and the secretary of the interior, against the survey of their common by Brown in 1834; that they proved before said Brown, when he made said survey, that the true north line of their common ran from the “Sugar-loaf” to the northeast corner of the common field of Carondelet. Plaintiff also offered to prove, by experienced surveyors and others, that the surveys of the commons of St. Louis and Carondelet do not conform to the confirmations, or either of them, and that the instructions under which the surveys were made were violated and disregarded; that said surveys were made in violation of law and of the act of Congress of June 13th, 1812.

The court, on motion of defendant, excluded the evidence. The defendant then introduced in evidence, against the objection of plaintiff, the United States survey of the outboundary line of the village of Carondelet. The land in controversy was not embraced within this outboundary line.

The plaintiff then offered to prove that said plat was constructed in the office of the surveyor-general in the year 1853, without any actual survey on the ground, from erroneous plats of other surveys; that no inhabitant of Carondelet was called upon to prove the true or actual outboundary of said town; that no official or other notice was given to said inhabitants to attend and do so; that the north line pointed out and proved to Brown by the said inhabitants, and run by said Brown in 1834, was fraudulently suppressed by him from the return of the survey of the common, but appeared on the plat of the survey of the common field of Carondelet; that the said outboundary, as constructed, followed the fraudulent survey of 1834, and that the clerk constructed said map of the outboundary line, and did not make any of the surveys on the ground from which it was constructed, nor go on the ground to do so or to verify the same; that there are not, and never have been, any such notes of survey in the surveyorgeneral's office as are referred to in the caption of the map of said outboundary line. The court excluded the evidence.

The following instructions asked in behalf of plaintiff were refused by the court: “1. All the right, title and interest of the United States in and to the commons of the village of Carondelet was vested in the inhabitants of said village on the 13th day 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 as common prior to and until the 20th day of December, 1803.2. If the jury find from the evidence that the land in controversy is within the commons of the village of Carondelet, as the...