Glasgow v. Baker

• Decision Date: 30 April 1885
• Citation: 85 Mo. 559
• Parties: GLASGOW v. BAKER et al., Appellants.
• Court: Missouri Supreme Court

85 Mo. 559

GLASGOW

v.BAKER et al., Appellants.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

C. Gibson and C. E. Gibson for appellants.

(1) The location of the sixteenth section within the range of the common field lots of the Grand Prairie is void. Glasgow v. Lindell Heirs, 50 Mo. 60, and Glasgow v. Baker, 72 Mo. 441; Page v. Scheibel, 11 Mo. 187; Glasgow v. Hortiz, 1 Black, 595. An abandonment is not presumed, but must be affirmatively proved, and when the defendants show that all the land was in cultivation it devolves upon them to prove that there were any abandoned lots in Grand Prairie field. Tayon v. Ladew, 33 Mo. 205; Clark v. Hammerle, 36 Mo. 620; Fine v. Schools, 39 Mo. 63. (2) Even if the surveys were invalid and did not conform to the certificates of confirmation (which is denied) still their correctness or validity cannot be questioned by the plaintiff, as they are conclusive as to him. Carondelet v. St. Louis, 29 Mo. 527; McGill v. Sommers, 15 Mo. 80; Milburn v. Hardy, 28 Mo. 520. (3) The certificates of confirmation and surveys thereunder were valid and were at least prima facie evidence against plaintiff. Page v. Scheibel, 11 Mo. 173; Joyal v. Rippey, 19 Mo. 660; Boyce v. Papin, 11 Mo. 25. (4) The judgment in any event should be set aside as to the Laroche arpent. In the second judgment the failure of the court to grant plaintiff a judgment for the Laroche tract was a direct adjudication that he was not entitled to said tract Thompson v. McKay, 41 Cal. 221; Woodin v. Clemons, 32 Ia. 280; Johnson v. Murphy, 17 Tex. 216. A judgment was not always a unit even at common law and certainly not under the code. 3 Bac. Abr. 386; Hopkins v. Organ, 15 Ind. 188; Wescott v. Bridewell, 40 Mo. 146; State v. Alexander, 56 Mo. 131; Morgan v. Railroad, 76 Mo. 161; Thorpe v. Johnson, 76 Mo. 662; Ricketson v. Richardson, 26 Cal. 149; Safford v. Navarro, 15 Tex. 76; Coghill v. Boring, 15 Cal. 213; Rogers v. Weil, 12 Wis. 663. (5) It was error in the court to exclude the report of the surveyor general to the commissioner of the general land office of January 30, 1855. Although it may be hearsay, yet the latter is admissible to establish the boundaries of land of individual proprietors. Boardman v. Reed, 6 Pet. 328; Kinney v. Farnsworth, 17 Conn. 363; Higley v. Bidwell, 9 Conn. 447; Woosterv. Butler, 13 Conn. 316; Tasser v. Herring, 3 Devereux 340; Van Deusen v. Turner, 12 Pick. 532; Fall Co. v. Worster, 15 New Hamp. 437; Smith v. Powers, 15 New Hamp. 564.

Collins & Jamison for appellants.

(1) The lands claimed by defendants come within the definition of a common field lot as declared by the Supreme Court of Missouri and of the United States. Page v. Scheibel, 11 Mo. 183. (2) The lands claimed by appellants being common field lots, were all confirmed by the act of June 13, 1812, proprio vigore, and neither confirmation certificate, survey, nor other documentary proof is necessary to establish the title to such land under said act. Milburn v. Hardy, 28 Mo. 514; Glasgow v. Lindell's Heirs, 50 Mo. 60; Glasgow v. Baker, 72 Mo. 441; Guitard v. Stoddard, 16 How. 494; Milburn v. Hortiz, 1 Black, 595. (3) The evidence introduced by appellants being uncontroverted, and the circuit court having found as a fact, that all of the land sued for lies within the out boundary lines of the great prairie common field of St. Louis, all of which was prior to twentieth of December, 1803, by inhabitants of the town of St. Louis, inhabited, cultivated or possessed as continuous, contiguous common field lots, the circuit court erred in finding for plaintiff. Glasgow v. Lindell's Heirs, 50 Mo. 60; Glasgow v. Baker, 72 Mo. 441. (4) The evidence as to inhabitation, cultivation, possession and boundaries, being the identical evidence introduced upon the two former trials of this case, and having by the Supreme Court of Missouri been adjudged sufficient, not having been disputed or controverted by plaintiff, is conclusive upon him. Glasgow v. Lindell's Heirs, 50 Mo. 60; Glasgow v. Baker, 72 Mo. 441. (5) The fact that the common field lots claimed by defendants, are excluded by the out boundary traced upon the map read in evidence by plaintiff, does not confer any title upon plaintiff. Milburn v. Hortiz, 1 Black, 595. (6) The evidence introduced by defendants was sufficient to establish a title outstanding, and plaintiff not having proved that he was the only person entitled to the land sued for, he never having been in possession, the court below erred in finding for the plaintiff. R. S., Mo. (1879) p. 373, sec. 2240; Beal v. Hammon, 38 Mo. 435; 2 Greenl. Evid., sec. 303; Adams on Eject. 33; Glasgow v. Lindell's Heirs, 50 Mo. 60; Glasgow v. Baker, 72 Mo. 441. (7) The defendants, as above, conclusively proved that all of the land sued for was, by the act of 1812, confirmed as common field lots, and there is no evidence tending to prove any abandonment of any of these lots. Page v. Scheibel, 11 Mo. 167; Glasgow v Baker, 72 Mo. 441. (8) Even had plaintiff established that any of these lots had been abandoned by the grantors under the act of 1812, this fact would not entitle plaintiff to recover. Glasgow v. Baker, 72 Mo. 441. (9) The circuit court erred in declaring that the surveys of common field lots, introduced in evidence, were not prima facie evidence of the locations of the lots surveyed. Soulard v. Allen, 18 Mo. 591; Milburn v. Hardy, 28 Mo. 514; City v. Toney, 21 Mo 243. (10) The Supreme Court of Missouri has twice declared that the sixteenth section cannot interfere with the common field lots confirmed by the act of 1812, and that the only question left in the case was whether the Lindell heirs had accepted the surveys of some of those lots made nine arpents and thirty-six feet west of the true front line, and the plaintiff having upon the last trial abandoned that defence to defendants' title, the court below erred in finding for plaintiff. Glasgow v. Lindell's Heirs, 50 Mo. 60; Glasgow v. Baker, 72 Mo. 441. (11) The court below erred in holding that the survey of the Laroche lot was void, because embracing two in place of one arpent in width. Milburn v. Hardy, 28 Mo. 514.

John Flournoy and B. A. Hill also for appellants.

M. L. Gray and J. D. S. Dryden for respondent.

(1) The survey of section sixteen of township forty-five, range seven, east, by the United States, specifically locating said section by metes and bounds identified by the evidence in the cause, of which the land in controversy is part, the act of congress of March 6, 1820, and the ordinance of the people of Missouri, of July 19, 1820, and the act of the legislature of Missouri of March 3, 1851, and the order of the county court of 1853, constitute a prima facie right and title in the plaintiff to recover the land sued for. Act of congress, March 6, 1820 (R. S., 1825, p. 37, sec. 6); Ordinance of Convention, of July 19, 1820 (R. S., 1825, 40); Act of Legislature of Missouri, of March 3, 1851 (Session Laws of 1851, 706); Glasgow v. Baker, 50 Mo. 78; S. C., 72 Id. 443; Payne v. St. Louis County, 8 Id. 477; State v. Ham, 19 Id. 592; S. C., 18 How. (U. S.) 126. (2) The town schools derived no rights to the lands in dispute by the act of congress of the thirteenth of June, 1812. The reservation by that act for the use of the schools of the town is by the terms of the act restricted to the lands lying inside the outboundary which the first section of the act required the principal deputy surveyor to run. Act of June 13, 1812 (2 U. S. Stat. at Large, 750); Act of May 26, 1824 (4 U. S. Stat. at Large, 66). The required survey of the outboundary was duly made by the proper officer, and is shown by a map in evidence called map X; but the lands in dispute are not within it, but outside and beyond it. The survey represented by map X has been irrevocably fixed by the United States as the outboundary required by said act of 1812, by the decision of the commissioner of the general land office, affirmed on appeal by the Secretary of the Interior. And the courts have always held accordingly. Trotter v. Schools, 9 Mo. 69; for instructions nine and twelve, see page 78, and for opinion, 84-5; Eberle v. The Schools, 11 Id. 247; Kissell v. Schools, 16 Id. 553; S. C., 18 How. (U. S.) 28. But even if the land in dispute, being vacant land, was reserved by the first section of said act of June 13, it was but a reservation, and not a grant; the property remained the property of the government and subject to any disposition the government might see fit to make of it. Hammond v. Schools, 8 Mo. 73-4; Eberle v. Schools, 11 Id. 262, 264; State v. Ham, 19 Id. 601. (3) The survey of a common field lot, confirmed under the act of June 13, 1812, which purports to be made in accordance with the calls and boundaries mentioned in the confirmation, is prima facie evidence of the true location of the lot confirmed; but a survey that does not purport to be made in accordance with such calls and boundaries is not prima facie or any evidence of such location. And under the evidence the trial court correctly decided the law as applicable to the surveys in evidence. Glasgow v. Baker, 50 Mo. 80; Vasquez v. Ewing, 42 Id. 256, et seq.; Blumenthal v. Roll, 24 Mo. 115; Clark v. Hammerle, 36 Id. 637. (4) The certificate of recorder Renard, issued to Laroche's legal representatives in 1857, is a nullity. Gamache v. Piquignot, 17 Mo. 310; S. C., 16 How. 451. (5) Bizet was a confirmation under the act of July 4, 1836, and a junior title to that of plaintiff. DeLaurrier v. Emerson, 14 Mo. 37; S. C., 15 How. 525; Les Bois v. Brammel, 4 How. 449; Sigerson v. Dent, 29 Mo. 489; Kennett v. Cole County, 13 Mo. 139; Menard v. Massey, 8 How. 293. (6) The ex parte affidavits taken before recorder Hunt and surveyor Cozens, and put in evidence by the defendants, were incompetent as evidence, beyond the effect that the court gave them. Gamache v. Piquignot, 17 Mo. 324; City v. Toney, 21 Mo....