Dent v. Sigerson

• Decision Date: 31 March 1860
• Citation: 29 Mo. 489
• Court: Missouri Supreme Court
• Parties: DENT, Plaintiff in Error, v. SIGERSON et al., Defendants in Error.^a1

29 Mo. 489

DENT, Plaintiff in Error,

v.SIGERSON et al., Defendants in Error.^a1

Supreme Court of Missouri.

March Term, 1860.

1. Under the practical construction given to the laws of the United States previous to 1836, United States surveys, when made and approved by the surveyors general, stood as the authorized governmental surveys until they were set aside by some authority having a right of supervision over the official action of the surveyors general; it was not necessary in order that a United States survey duly made and approved by the surveyor general should become an authoritative survey, that it should be transmitted to the General Land Office, and receive the formal approval of the commissioner, or of the department to which he was subordinate.

2. Confirmations under the act of Congress of July 4, 1836, do not relate back to the date of the original Spanish grant or concession so as to exclude intermediate grants; they take effect only from the date of the passage of said act.

3. The United States survey of the common of Carondelet made by Joseph C. Brown, deputy surveyor, stood as an approved and authoritative survey of the United States in the year 1834; and whether it did or did not relate back to the inception of the title to common under the act of Congress of June 13, 1812, still the title of Carondelet to the land embraced within said survey as common is superior to and must prevail over a title emanating from the United States by virtue of a confirmation under the act of Congress of July 4, 1836.

Error to St. Louis Circuit Court.

The facts in evidence are sufficiently set forth in the opinion of the court. The following instructions asked by the plaintiff were refused:

1. If the jury believe from the evidence that there was no grant, concession or survey of any land south of the river Des Peres as commons for the village of Carondelet, nor any use of land there for that purpose, under and by the authority of the Spanish government, then the act of Congress of June 13, 1812, and of 1831, did not confirm any land there as commons.

2. The reply of Zenon Trudeau to the petition of Gamache dated December 7, 1796, given in evidence by plaintiff, is no grant or concession of any land to the inhabitants or village of Carondelet for commons.

3. The jury are instructed that there is no evidence of any use of any land south of the river Des Peres as commons, under and by authority of the Spanish government, by the inhabitants of Carondelet prior to December 20, 1803.

4. No grant, concession or order of survey of any land south of the river Des Peres as commons for the village of Carondelet having been shown, nor any use of land there as commons, and the survey of the United States of said commons not having been finally approved by the United States until the 23d day of February, 1855, the jury are instructed that the confirmation of the claim of Gabriel Cerré by act of 4th of July, 1836, and surveyed by the United States as United States survey No. 3067, is a better title to the land within the limits of that survey than any derived from Carondelet.

5. If the jury find from the evidence that Gabriel Cerré, or those claiming under him, inhabited, cultivated or possessed a tract of land of ten by forty arpens conceded to said Cerré on the 15th of March, 1789, or some portion thereof claiming the whole, in the year 1796 and prior to the 20th of December, 1803, and that the same land was confirmed by act of Congress of the 4th day of July, 1836, and surveyed by the United States as survey 3067, then the said confirmation and survey are a better title to the land within the limits of said survey than any derived from Carondelet shown in this case.

6. The jury are instructed that as no grant, concession or survey under the Spanish government for any lands as commons for the village of Carondelet south of the river Des Peres has been shown, and as the survey of the commons of Carondelet was not finally approved by the United States until the 23d day of February, 1855, the claim of Gabriel Cerré, confirmed by the act of Congress of 4th July, 1836, and surveyed by the United States as survey No. 3067, is a better title to the land within the said Cerré survey than any derived from Carondelet, unless the jury should find that the land within the limits of said Cerré survey was used as commons by the inhabitants of Carondelet prior to the change of government.

7. The jury are instructed that the confirmation to Gabriel Cerré by act of July 4, 1836, and the survey thereof by the United States as survey No. 3067, conveys a better title to the land within the limits of that survey than any derived from Carondelet, unless the jury should be satisfied from the evidence that the inhabitants of said town used the land within the limits of said survey prior to the change of government as commons of said town and subsequent to the date of said concession to Cerré.

8. The survey given in this case, the certificate of which bears date the 8th of October, 1855, is the only valid and subsisting survey of the commons of Carondelet, and by the terms of approval of said survey it can have no force or effect against the rights of those deriving title under the confirmation to Gabriel Cerré by the act of Congress of 4th July, 1836, and survey of the United States No. 3067 of said Cerré's confirmation; and, as the claim of the inhabitants of the town of Carondelet as filed before the recorder of land titles and exhibited before the board of commissioners was for six thousand arpens in quantity and not by extent or boundary, if the jury find from the evidence that said concession in evidence was granted on the 15th day of March, 1789, by Lieut. Governor Perez, and that the land embraced therein was inhabited, cultivated and possessed in the year 1796, and afterwards prior to the 20th day of December, 1803, (or some part thereof claiming the whole,) by Gabriel Cerré or those claiming under him, and that said land was confirmed to said Cerré or his legal representatives by act of 4th July, 1836, and surveyed by the United States as survey No. 3067, then the jury are not authorized to find that said land is any portion of the land confirmed to the inhabitants of Carondelet as commons.

9. The surveys of the Carondelet commons as made by Rector and Brown were disapproved by the commissioner of the General Land Office and by the proper authorities of the government of the United States; and if the jury find from the evidence that the final approval of the said surveys of Brown and Rector, by the Secretary of the Interior in 1855, excluded from said surveys 1702.04 acres of land reserved for the use of the military post at Jefferson Barracks-- and further provided that the parties claiming adversely to Carondelet should not be hindered, by reason of said survey, or the approval thereof, from establishing and settling their right before the judicial tribunal of the country--and that the survey made under the said final approval of said surveys expressly declared that, as regards the rights of all other claimants within the limits of said survey of the commons aforesaid, who hold adversely to Carondelet, should not be construed to interfere with the rights of such adverse claimants to seek a judicial settlement of their several interests-- and if the jury further find that plaintiff was an adverse claimant to Carondelet of the premises in question under the grant to Gabriel Cerré--and that said grant was confirmed to the said Gabriel Cerré and his legal representatives by the act of July 4, 1836--and that a survey thereof was made by the United States embracing the premises in question in the year 1838 and duly approved--and that said Cerré possessed, inhabited or cultivated the said tract of land, or any part thereof claiming the whole, prior to the 20th day of December, 1803--then the surveys of Rector and of Brown of the land claimed as commons for Carondelet south of the river Des Peres are not, nor are either of them, conclusive against the plaintiff; and unless the jury find from the evidence that the inhabitants of Carondelet used or possessed the premises in question prior to the 20th of December, 1803, as commons belonging or appertaining to said village of Carondelet, the plaintiff is entitled to recover in this action.

10. The survey of the Carondelet commons made under the final decision of the Secretary of the Interior of 1855 is not conclusive against the claim of the plaintiff under the confirmation of 1836 and the survey of 1838; and if the jury find from the evidence that plaintiff was an adverse claimant against Carondelet of the premises in question, under the grant to Gabriel Cerré, and that said Cerré inhabited, cultivated or possessed the said tract of land, or any part thereof claiming the whole, prior to the 20th day of December, 1803, then the plaintiff is entitled to recover, unless the jury further find from the evidence that the inhabitants of Carondelet used or possessed the premises in question prior to the 20th day of December, 1803, as commons belonging to or appertaining to said village of Carondelet.

11. If the land in the possession of defendant at the commencement of this suit was part of a tract of land conceded to Gabriel Cerré on the 15th day of March, 1789, by Lieut. Governor Perez, and that claim to said tract was confirmed to Gabriel Cerré or his legal representatives by act of Congress of July 4, 1836, then the title under said confirmation is a superior title to the land thus confirmed to any derived under the inhabitants of Carondelet, unless the jury should find that said tract became vacant land prior to December 7, 1796.

12. If the jury find from the evidence that the premises in question, or any part thereof under claim for the whole tract, was inhabited, cultivated or possessed prior to the 20th day of December, 1803, by Gabriel Cerré, under the grant to him of 1789, or otherwise, then the...