Fine v. Bd. of President & Dirs. of the St. Louis Pub. Sch.

Decision Date31 October 1866
PartiesJOSHUA FINE et als., Respondents, v. THE BOARD OF PRESIDENT AND DIRECTORS OF THE ST. LOUIS PUBLIC SCHOOLS et als., Appellants.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court.

This was an action of ejectment for the recovery of five undivided fourteenth parts of a lot of land of one by forty arpents in St. Louis common fields, bounded on the north by survey No. 1483 to Joseph Taillon, and on the south by survey No. 1482 to Jean B. Sarpy's representatives. The case had been previously in the Supreme Court--23 Mo. 570, & 30 Mo. 166.

At the trial of the cause, plaintiffs read in evidence the depositions of Antonio Smith, Francis Noise, Joseph S. Hull, Elizabeth Ortes, and Joseph Aubuchon, for the purpose of showing that Phillip Fine, under whom plaintiffs claim title, cultivated the land in controversy prior to December, 1803. The evidence adduced by plaintiffs tended to show that, prior to 1782, one Laurent Larouge, alias Phillibert Gagnon, fenced in and claimed a tract of land near the “Big mound” corresponding somewhat in its description with the land in controversy; that after his death his widow Madame Larouge, claimed the land; that she married Phillip Fine in 1782; that Fine cultivated the land between 1782 and 1791; that about the year 1793, when the common fence fell down, he married his second wife, Celeste Boly, and removed to the Meramec, where he had cultivated a farm ever since 1783. It appeared in evidence that the land in controversy remained vacant until 1839 (46 years); that in 1839 Robert N. Moore took possession of a portion of said tract, claiming the same under Fine; that in 1845 all the land in controversy, except that portion which is covered by Labeaume's survey, was assigned and surveyed for the Public Schools as vacant lands under the acts of 1812 & 1824; that after some litigation the defendants acquired the possession of the premises in controversy, and have ever since continued to hold and claim the property adversely to the plaintiffs who claimed under Fine.

The defendants then read in evidence two assignments for the support of the Schools in the town of St. Louis, being land included in U. S. surveys Nos. 379 and 380, embracing so much of the land in controversy as is not covered by Labeaume's survey.

The defendants, for the purpose of proving that the land in controversy was vacant, abandoned, and united to the public domain, prior to Dec. 20, 1803, then read in evidence the certified copies of the proceedngs and entries on the margin of Livre Terrein, under the Spanish Government, relating to all lots in that part of the common field (in which the premises in controversy are situated) as lie north of the premises. The proceedings so read tended to show that in and about the year 1793 (being the time when Fine removed to the Meramec) nearly all the lots adjoining the lots in controversy had been abandoned for many years by the persons who claimed or cultivated them, and were marked on Livre Terrein, “re-united to the public domain.”

The defendants then read in evidence certified copies of the petition of Joseph Brazeau, Louis Labeaume, and Pierre Chouteau, to the Lieutenant Governor under the Spanish Government, and certified copies of the concessions of the Lieutenant Governor to Brazeau, Chouteau and Labeaume, and papers accompanying the same. In these petitions, and the proceedings had thereon between the years 1794 and 1803, the land in controversy was spoken of, and treated as vacant and abandoned.

The defendants gave in evidence a plat marked B., proved by Adolph Renard that he was keeper of the surveys of Martin Duralde; that Duralde was a surveyor under the Spanish Government; that Duralde made the surveys represented on said plat between the years 1770 and 1772; that the endorsements of abandonment were made in 1793-4; that the plat is a correct plat of the surveys of Duralde on file in the office of witness, and that Martin Duralde died many years ago.

The defendants then read in evidence the certified copies of the petition of Philip Fine to the Lieutenant Governor under the Spanish Government for land at or near the mouth of the Meramec, and the concession of the Lieutenant Governor. The documents tended to prove that from 1786 to 1799 Philip Fine cultivated and possessed a tract of land at the mouth of the river Meramec.

The defendants then read in evidence a marriage contract, dated Septemder 4, 1794, between Philip Fine and Celeste Boly, which contains the following clauses: “The said future couple take each other with all the rights and property to them now belonging and which may accrue to them by inheritance, legacy, or otherwise, from whatever side and line the same may proceed, and in whatever place it may be situated, which property shall enter without any reservations into the community, to date from the day of the celebration of said marriage.”“The said future couple, in order to give each other a reciprocal proof of the mutual affection they entertain towards each other, have made each to the other, as they do make by these presents, a donation inter vivos, mutual and reciprocal and indefeasible, to the survivor of them, all the personal and real property which the first one dying shall have and leave at the day and hour of his or her death, for the survivor to have, manage and dispose of in full right, and as the property to him belonging, without the said survivor being held to any inventory or renditions of account towards the parents or heirs of the first one dying, which shall belong to the said survivor of full right.”

The defendants then proved by official records that Philip Fine married his first wife, Madame Larouge, on the 23d of November, 1782; that Madame Larouge died on the 25th of October, 1791; that Philip Fine married his second wife, Celeste Boly, on the 9th of September, 1794; that Francis Noise, the witness examined on the part of plaintiffs, was baptized on the 28th of March, 1785, three years after the marriage of Fine and Madame Larouge.

The defendant then introduced the testimony of P. Chouteau, Jr., of William Boly (a brother-in-law of Philip Fine), and of John Purcelli, tending to show that Philip Fine removed to the Meramec in 1794, and that he never owned, claimed, possessed or cultivated any lot near the big mound.

The plaintiffs also read in evidence a conveyance dated March 17, 1792, executed by Juan Cuno to Philip Fine, conveying to him a lot of ground on Main street in the town of St. Louis. In this conveyance Philip Fine is mentioned as having been present in St. Louis in 1792.

Plaintiffs' instructions given:

1. If the jury believe from the evidence that the lot described in the petition was one of a series of lots lying adjoining each other, and having the same general range and uniform depth of forty arpents; and that Philip Fine, prior to December 20, 1803, cultivated this lot in different parts thereof, claiming the whole, and while so cultivating it was an inhabitant of the then town or village of St. Louis, and that he was the last cultivator thereof before December 20, 1803, and continued to claim the same until the 13th day of June, 1812, they should find for plaintiffs.

2. If the jury believe from the evidence that Philip Fine did cultivate the lot in controversy as above stated, they should presume that he rightfully claimed it, and always afterwards claimed it, until the contrary be proven.

3. If the jury find that Philip Fine did cultivate said lot as mentioned in the first instruction--then they are instructed that they ought not to find that Philip Fine abandoned the lot in controversy unless they find that he in his lifetime left the lot and ceased to exercise ownership and control over the same with the intent on his part that the said lot should no longer be his property.

Defendants' instructions given:

1. By abandonment is meant the quitting of possession of land with the intention that it should be no longer the property of the possessor. The intention of abandonment may be inferred or presumed by the jury from all of the facts and circumstances of the case; if, therefore, the jury should believe from the evidence that Philip Fine inhabited, possessed or cultivated the land in controversy prior to December 20, 1803, but should also believe from all of the facts and circumstances given in evidence in this case that he abandoned the same at any time prior to June 13, 1812, they will find for defendants.

2. If the jury are not satisfied from the evidence that Philip Fine inhabited, possessed or cultivated the land...

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