Fine v. St. Louis Pub. Sch.

• Decision Date: 31 October 1856
• Citation: Fine v. St. Louis Pub. Sch., 23 Mo. 570 (Mo. 1856)
• Parties: FINE AND OTHERS, Respondents, v. THE ST. LOUIS PUBLIC SCHOOLS AND OTHERS, Appellants.
• Court: Missouri Supreme Court

23 Mo. 570

FINE AND OTHERS, Respondents,

v.THE ST. LOUIS PUBLIC SCHOOLS AND OTHERS, Appellants.

Supreme Court of Missouri.

October Term, 1856.

1. The entries made in Livre Terrein upon the margin of the records of Duralde's Spanish surveys of common field lots, showing an abandonment of those lots, and a re-uniting them to the king's domain,” are admissible in evidence, in a suit founded on an alleged confirmation by the act of Congress of June 13, 1812, to show that under the Spanish government it was not unusual for the inhabitants to abandon their possessions.

Appeal from St. Louis Land Court.

This was an action commenced in the year 1854, in the nature of an action of ejectment, to recover possession of an undivided interest in a lot of one by forty arpens in the St. Louis common field. The defendants were the Board of President and Directors of the St. Louis Public Schools, the City of St. Louis, and about eighty others, who hold in severalty and not in common. The St. Louis Public Schools and several other defendants answered plaintiffs' petition, and entered into an agreement with the plaintiffs by which it was stipulated, among other things, that the issue between plaintiffs and the Public Schools might be tried, and in case a verdict should be rendered in favor of plaintiffs, a general judgment should be entered against the Public Schools and all the defendants who were parties to the agreement. Plaintiffs claimed title as heirs and legal representatives of Philip Fine, to whom the lot in controversy is alleged to have been confirmed by the act of Congress of June 13, 1812; and it was admitted that the plaintiffs are the heirs and legal representatives of said Philip Fine to the extent of an interest of three undivided twenty-eighths of all the right, title and interest of the said Philip Fine in and to the tract of land described in plaintiffs' petition. In proof of cultivation and possession of the lot in controversy by the said Fine prior to December 20th, 1803, plaintiff introduced the oral testimony of two witmesses, Antoine Smith and François Noisé. This testimony tended to show that the said Philip Fine was in possession of and cultivated the tract of land in controversy prior to December 20th, 1803; that he possessed and cultivated the same up to the time of the falling down of the fence, about six years before the change of government, when he removed from St. Louis to the mouth of the Maramec river, where he continued to reside until his death. No documentary evidence of any concession or grant from the Spanish government was presented by plaintiffs. It was admitted that the premises in controversy lie within the outboundary lines of the town (now city) of St. Louis, as surveyed, marked, and established by the surveyor general of Illinois and Missouri in the year 1840, so as to include the out-lots, common field lots, and commons thereto belonging, in pursuance of the act of Congress of June 13, 1812. There was evidence bearing upon the question of location, which it is unnecessary to set forth.

The defendants adduced in evidence surveys No. 379 and 380, by which the land in controversy was designated and set apart in the usual form for the support of schools by the surveyor general. Defendants offered to read in evidence certified copies from Livre Terrein of surveys, made by Martin Duralde, between 1770 and 1772, by authority of the Spanish government, of all the common field lots lying north of the premises in controversy in the same common field, with the entries on the margin of the record of each survey in Livre Terrein in the following form in each case: “Reuni au domaine du Roy pour les avoir abandonné dupuis longtems. St. Louis, le 4 Juin, 1793. [Signed] Z. Trudeau.”“Re-united to the domain of the king for having abandoned these arpens since a long time. St. Louis, the 4th of June, 1793. Z. Trudeau.” On the objection of plaintiffs, these copies of surveys, with the marginal entries signed by the lieutenant governor of the province, were ruled out as inadmissible. It also appeared from the testimony of Mr. Renard, the U. S. recorder of land titles, introduced by defendants, that the premises in controversy had never been surveyed by the United States until surveyed and assigned to the schools.

The court, on its own motion, gave the following instructions: “1. In order to enable the plaintiffs to recover in this action, it must appear in evidence to the satisfaction of the jury, that Philip Fine did, prior to the 20th day of December, 1803, inhabit, cultivate and possess the land in question, and that he, or those representing his interests, continued to claim the same as a lot or out-lot, or common field lot, in, adjoining, or belonging to the town of St. Louis, after the said 20th of December, 1803, and down to the passage of the act of Congress of June 13, 1812. 2. Abandonment presents a question of fact and intention. If the party have only a naked possession, and leave the possession voluntarily, this is abandonment. If he have possession coupled with a right, title or claim to the land, the mere quitting of possession is not necessarily an abandonment; therefore, if it be proven that Fine left the possession of the land when the common fence fell down, his motive and intention in leaving the possession are proper objects for the consideration of the jury. And if it appear to the jury that, after leaving the land, he still considered it his own, and exercised acts of ownership over it, or continued to assert his right, title, or claim to it down to the 13th of June, 1812, then the act of Congress of that date confirmed the title to him, and the title so confirmed is better than the title of the school board shown in evidence.” To the giving of which the defendants excepted.

The court gave the following instructions, on the motion of defendants: “3. Unless the jury shall be able from the evidence satisfactorily to ascertain and fix the location and boundaries of the lot of land claimed to have been cultivated and possessed by said Philip Fine, prior to the 20th day of December, 1803, and to identify said lot as being the same land now sued for in this case, they will find for the defendants. 4. If the jury find that Philip Fine abandoned the possession of the lot in question and removed from St. Louis prior to the 20th December, 1803, and that neither he nor any person under him did retake possession of said lot, or lay claim thereto up to or at the time of the passage of the act of Congress of 13th June, 1812, then neither the said Fine, nor any person representing him, acquired any right or title to the premises by force of said act of Congress; and the jury will find for defendants.”

The court refused the following instructions asked for by defendants: “1. If the jury believe from the evidence that prior to the 20th day of December, 1803, the said Philip Fine abandoned the possession of the lot cultivated by him, and removed from the town of St. Louis to the Maramec, permanently ceasing to be an inhabitant of said town, and that he did not again become an inhabitant of said town prior to the time of the passage of the act of Congress of 13th June, 1812, nor retake possession of said lot, nor exercise any acts of ownership or claim over the same up to that date, they will find for the defendants. 2. The jury are instructed that the United States surveys of lots Nos. 1482 and 1483, called the Tayon lot and the Sarpy lot, are only prima facie evidence of the location and boundaries of those lots now, as between the government and the owners of those lots, and all persons claiming those lots against the present owners thereof; but that they do not of themselves alone furnish any evidence of the location and boundaries of the lot which Philip Fine is supposed to have cultivated prior to the 20th day of December, 1803. 3. Unless the jury are fully satisfied from the evidence, that the said Philip Fine, under whom the plaintiffs claim, did, prior to the 20th day of December, 1803, inhabit or cultivate and possess the identical land in the petition mentioned and described, as an out-lot or common field lot, adjoining or belonging to the town or village of St. Louis, claiming the same for himself under the authority or by permission of the French or Spanish government, they will find for the defendants.”

The jury found for plaintiffs. The defendants bring the case to this court by appeal.

E. Casselberry, for appellants.

I. The first instruction asked for by the defendants and refused by the court was improperly refused. The act of 1812 does not purport to confirm rights to any one except to the inhabitants of the “respective towns or villages.”

II. The court erred in refusing the second and third instructions asked for defendants.

III. The court erred in ruling out as inadmissible the copies of Duralde's surveys, with the marginal entries made by the lieutenant governor.

IV. The court erred in giving instructions numbered 1 and 2. (See generally Guitard v. Stoddard, 16 How. 412; Coke on Littleton, 250, 252; Hughes v. McAllister & Co. 15 Mo. 302; Vasseur v. Benton, 1 Mo. 222, 296; Lajoye v. Primm, 3 Mo. 368; Janis v. Gurno, 4 Mo. 458; Gurno v. Janis, 6 Mo. 330; Beihler v. Coonce, 9 Mo. 347; Montgomery v. Landusky, 9 Mo. 705; Page v. Scheibel, 11 Mo. 167; Harrison v. Page, 16 Mo. 182; Soulard v. Allen, 18 Mo. 590; Soulard...