City of St. Louis v. St. Louis Blast Furnace Co.

• Decision Date: 01 June 1911
• Citation: 138 S.W. 641,235 Mo. 1
• Parties: CITY OF ST. LOUIS v. ST. LOUIS BLAST FURNACE CO.
• Court: Missouri Supreme Court

138 S.W. 641

235 Mo. 1

CITY OF ST. LOUIS v. ST. LOUIS BLAST FURNACE CO.

Supreme Court of Missouri, Division No. 1.

June 1, 1911.

1. WORDS AND PHRASES — "TOWN AND VILLAGE LOTS."

The term "town and village lots" was used by the inhabitants of Missouri, under French dominion, in the same sense as it is now used in that state.

2. WORDS AND PHRASES — "COMMON FIELDS" AND "COMMONS."

The terms "common fields" and "commons" are of French origin, and were used in Acts Cong. June 13, 1812, c. 99, 2 Stat. 748, May 26, 1824, c. 184, 4 Stat. 65, and Jan. 27, 1831, c. 12, 4 Stat. 435, relating to title to such lands in Louisiana Purchase territory — "common fields" to designate fields cultivated outside a village by the inhabitants, in severalty, though generally under a common fence; and "commons" to designate a large body of land held in common and used for pasturage, fuel, etc.

3. EJECTMENT (§ 88*) — EVIDENCE — RELEVANCY.

In ejectment involving an accretion to land which originally lay within a village under French dominion, a certificate concerning confirmation of title to lands claimed by the original inhabitants and lying outside of the village was irrelevant.

4. EVIDENCE (§ 334*) — CERTIFICATES — AUTHORITY TO MAKE.

A certificate by a recorder of land titles is inadmissible to show confirmation of title, where the act creating his office does not authorize making of such certificate.

5. PUBLIC LANDS (§ 211*) — FRENCH GRANTS — CONFIRMATION OF TITLE.

So far as Act Cong. May 26, 1824, c. 184, 4 Stat. 65, purported to require owners of lots in a village originally under French dominion, whose claims had been confirmed under Act Cong. June 13, 1812, c. 99, 2 Stat. 748, to appear before the recorder of deeds and prove their claims, it was of no effect.

6. PUBLIC LANDS (§ 213*) — FRENCH GRANTS — EVIDENCE OF TITLE.

Surveys under Act Cong. June 13, 1812, c. 99, 2 Stat. 748, and of lots and commons held by inhabitants of a village under the old French dominion, are no evidence of title to such lands.

7. PUBLIC LANDS (§ 211*) — RELINQUISHMENT — STATUTES.

Act Cong. Jan. 27, 1831, c. 12, 4 Stat. 435, relinquishing title to town and village lots and common field lots reserved for school purposes under Act Cong. June 13, 1812, c. 99, 2 Stat. 748, for disposition as directed by the Legislature, did not transfer the title to the towns and villages.

8. PUBLIC LANDS (§ 213*) — FRENCH GRANTS — BURDEN OF PROOF.

In ejectment involving an accretion to a lot originally located in a village under the old French dominion, the burden was on plaintiff to show that the lot was vacant and as such reserved by Act Cong. June 13, 1812, c. 99, 2 Stat. 748, for school purposes.

9. PUBLIC LANDS (§ 211*) — FRENCH GRANTS.

Confirmation of title to land in a village bounded by a river, "leaving space for a tow," and showing that a towpath was once maintained along the bank, does not show fee title in the village to the land covered by the path, so as to entitle it to accretion; the public right being a mere easement, which ceased when the use ended.

10. EVIDENCE (§ 5*) — JUDICIAL NOTICE — "TOWPATH."

The Supreme Court judicially knows that a "towpath," as applied to land fronting the Mississippi river, was an appurtenance to navigation belonging to the general public; a path traveled by men or animals towing boats.

11. EJECTMENT (§ 9*) — PROOF REQUIRED OF PLAINTIFF.

Plaintiff in ejectment must recover, if at all, on the strength of his own title, and not on the weakness of defendant's.

12. EJECTMENT (§ 95*) — EVIDENCE — SUFFICIENCY.

Evidence in ejectment by a city involving accretion to land bordered by a river held insufficient to show title in the city.

Appeal from St. Louis Circuit Court; Danl. G. Taylor, Judge.

Ejectment by the City of St. Louis against the St. Louis Blast Furnace Company. Judgment for defendant, and plaintiff appeals. Affirmed.

L. E. Walther and H. W. Allen, for appellant. Edw. C. Kehr, for respondent.

VALLIANT, J.

This is an action in ejectment. The land in suit, as described in the petition, lies between the east line of what was block 12 of Eiler's survey of the village of Carondelet (now block 2976 of the city of St. Louis) and the Mississippi river, bounded south by the north line of Soper street extended to the river, east by the river, north by the south line of Kansas street, and west by the west line of what is now Front street; the same being designated on Eiler's map as a towpath, or Water street. It is an accretion to the land covered by the towpath and an accretion to block 12, if the towpath is a part of that block. It is not questioned that the defendant now owns the east half of block 12, and it claims to own the land in dispute as an accretion to the original block 12.

Plaintiff contends that the original block 12 was bounded on the east by the towpath, and that the land covered by the towpath belonged to the village of Carondelet. The town of Carondelet was incorporated August 6, 1832; it was incorporated as the city of Carondelet by an act of the General Assembly approved March 1, 1851 (Laws 1850, 1851, p. 139); it became a part of the city of St. Louis by an act of the General Assembly approved March 4, 1870 (Laws 1870, p. 458). By the act last named, St. Louis acquired all the title that Carondelet had to the land in dispute.

On December 20, 1803, at New Orleans, the French government, acting by its representative, delivered to the United States, acting by their representative, the territory of Upper and Lower Louisiana, in consummation of the treaty of April 30, 1803 (8 Stat. 200), between the United States and France. By article 3 of the treaty it was provided, inter alia, that the inhabitants of the ceded territory should "be maintained and protected in the free enjoyment of their liberty, property and religion which they profess."

For the purpose of performing this part of the treaty obligation, Congress passed in succession several acts seeking to establish and confirm the titles of the then inhabitants to lands in that territory. The first of these was the act of March 2, 1805, c. 26, 2 U. S. Stat. 324, in which provision is made for the proving of claims to land and the confirmation of titles so proven. The act authorizes a board of commissioners to be appointed by the President to hear proof and pass on the claims in a summary way, make a record of its proceedings, and report the same to Congress. Experience showed that written or documentary evidence of title emanating from the French or Spanish government was sometimes difficult to produce; therefore Congress passed the act of April 21, 1806, c. 39, 2 U. S. Stat. 391, and the act of March 3, 1807, c. 36, 2 Stat. 440, both designed to facilitate the proving of the claims. Those acts authorized the confirmation of the claim, so far as the United States could confirm it, on proof of occupation for 10 consecutive years prior to December 20, 1803, and on that day. But again it was experienced that proof of continuous occupation for that period was difficult, and to meet that difficulty Congress passed the act of June 13, 1812, c. 99, 2 U. S. Stat. 748, confirming titles to "town or village lots, outlots, common field lots and commons, in, adjoining and belonging to the several towns or villages (naming them and including Carondelet) in the territory of Missouri, which lots have been inhabited, cultivated or possessed, prior to the twentieth day of December, one thousand eight hundred and three." The act excepts from its effect titles that had been theretofore confirmed by the board of commissioners.

An act approved May 26, 1824, c. 184, 4 Stat. 65 (Public Lands, vol. 1. p. 397), declares it to be the duty of the owners or claimants of lots whose titles were confirmed under the act of June 13, 1812, to proceed within 18 months to designate their lots by proof before the recorder of land titles for the state or territory of "the fact of such inhabitation, cultivation or possession and the boundaries and extent of each claim, so as to enable the surveyor general to distinguish the private from the vacant lots appertaining to said towns and villages." And on the expiration of the 18 months the surveyor general was required to cause a survey to be made, and set apart to the towns and villages for the support of public schools the vacant lots, outlots, and common fields which had not before that time been designated by the President for military purposes. The surveyor general was also required to survey and designate the commons belonging to the towns and villages according to their respective claims and confirmations; the recorder was required to issue a certificate of each claim confirmed, and was to furnish the surveyor general a list of the lots so proven to have been inhabited, etc., "to serve as his guide in distinguishing them from the vacant lots to be set apart as above described"; that is, for school purposes.

By the first section of an act approved January 27, 1831, c. 12, 4 Stat. 435 (Public Lands, volume 1, p. 478), the United States relinquished to the inhabitants of the towns and villages therein mentioned, including Carondelet, all title to the "town or village lots, outlots, common field lots, and commons in, adjoining, and belonging to said towns and villages," confirmed to them by the first section of the act of June 13, 1812. By the second section of the act of 1831, the United States relinquished their title to the lots reserved for school purposes; more especial reference to that section will be made herein later. Plaintiff also relies on an act of the General Assembly of date February 13, 1833 (Mo. Ter. Laws, vol. 2, p. 393). Appellant, the city of St. Louis, claims title to the land sued for by virtue of three of the acts of Congress above mentioned, to wit, that of June 13, 1812, that of May 26, 1824, and that of January 27, 1831. The contention of the city is that when the act of June 13, 1812, went...