Hammond v. St. Louis Pub. Sch.

• Decision Date: 31 July 1843
• Citation: 8 Mo. 65
• Parties: HAMMOND v. THE ST. LOUIS PUBLIC SCHOOLS.
• Court: Missouri Supreme Court

8 Mo. 65

HAMMOND

v.THE ST. LOUIS PUBLIC SCHOOLS.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

SPALDING, for Appellant. 1. The plaintiff below had right of possession only of such land as was reserved for the use of schools in the second section of the act of Congress of 13th June, 1812, “making further provision for settling the claims to land in the territory of Missouri.” 2 Story's Laws, 1257, act of 13th June, 1812; 3 Story's Laws, 1972, act of 26th May, 1824; 4 Story's Laws, 2220, act of 27th January, 1831; act of General Assembly of Mo. of February 13th, 1833, p. 37. 2. The lands reserved for the use of schools by the second section of the act of Congress of 13th June, 1812, are confined to what was either a town or village lot, out-lot, or common-field lot, on 20th December, 1803. 6 Mo. R. 292-4, 297; 3 Story's Laws, 1792, § 2. 3. If the reservation in the second section of the act of 13th June, 1812, embraces town or village lots, out-lots, and common-field lots of the respective towns, as they were at the date of the passage of that act, it is yet to be confined to the towns or villages, properly so called, and does not refer to the limits of them as incorporated under the American government, which, as in the case of St. Louis, may contain several square miles of land lying in the neighborhood of the town proper. Hempstead's Dig. 256; “An act concerning Towns in this Territory,” passed June 18th, 1808. 4. Margarette Lachaisse acquired a title to the land in question by the acts of the recorder of land titles, ratified by the act of Congress of 29th April, 1816. 3 Story's Laws, 1604; 1 Mo. R. 777. The second section of act 13th June, 1812, does not take away the right from Congress of passing the title of the land therein reserved. Said section does not reserve the land in question, because it was “rightfully claimed” by Madame Lachaisse, under a Spanish grant. 5. The doctrine applied in the case of Wilcox v. Jackson, in 13 Peters' R. 511, is not applicable here: that was, that the ministerial officer could not sell lands reserved from sale by law. But here Congress itself has removed its own prohibition, if the second section of the act of 13th June, 1812, embraced the ground in question. 2 State Papers, Public Lands, 388, 559; 563, 603, for Commissioner's Reports; 3 State Papers, 274, Recorder's Reports, the first part thereof containing village claims, &c. ibid. 293, second part; ibid. 276 and 280. 6. The reservation in second section of act of 13th June, 1812, is not a dedication to public use, but is merely an expression of the benevolent intention of the government; it is a mere reservation. All the instances of dedication are of designated pieces of property, and of property used for the public in some particular mode; and the party, in such cases, is estopped from resuming the land dedicated, inasmuch as the interests of others, third persons, have become vested on the faith of such dedication. 10 Peters' R. 720; 6 Peters' R. 438.

GEYER and GAMBLE, for Appellees. The appellees rely upon the following points and authorities: 1. The record of the proceedings of the Court of Common Pleas, being duly certified, is in its nature competent, and it is relevant to the issue, to ascertain the limits of the town of St. Louis on the 13th June, 1812, since it is to the then inhabitants that grants are made by the first section, and the reservation in the second section is for the support of schools in the town, not as it was at any antecedent period, but as it was when the act passed: and, moreover, the survey to be made by the first section is to be the out-boundary lines of the town (as it then was) to be extended, if necessary, so as to include out-lots, &c., belonging thereto. 2 Story's Laws U. S. 1257.2. The plats and surveys given in evidence by the plaintiffs, and objected to by the defendant, are “copies of plats and surveys,” required by law to be deposited and kept in the office of the surveyor of the lands of the United States in this State. 2 Story's Laws U. S. 1257; 3 do. 1973; 4 do. 2220. They were duly certified by said surveyor, and therefore must be received in evidence. Rev. Code Mo. 1835, p. 251. 3. The letter of instructions, by the commissioner to the surveyor, is written under the authority of law. 2 Story's Laws U. S. 1257; 3 do. 1973. The original is a paper required by law to be deposited and kept in the office of surveyor; a copy, duly certified by him, is competent evidence. Rev. Code 1835, p. 251. The original is a public document, and, as such, cannot be removed from one place to another, nor the production in court compelled, and a copy is there, when proved, as in this case, competent evidence. 1 Starkie's Ev. 156-7, 160-1. On general principles of law, a copy of a paper given by a public officer whose duty it is to keep the originals, ought to be received in evidence. United States v. Perkman, 7 Peters, 53. 4. The documents objected to by the defendant, being duly authenticated, were competent evidence; and if there be anything in either of them incompetent or irrelevant to the issue, that matter ought to have been specially objected to. 5. The act of the 13th June, 1812, disposes of all the lots, out-lots, and common-field lots, and commons, in, adjoining to, and belonging to the town of St. Louis, included within the out-boundaries of the survey directed to be made by the first section of the act, and which had not before been granted or confirmed by the board of commissioners. Those lots which-were inhabited, cultivated, or possessed prior to the 20th December, 1803, it grants to individual claimants, and all others it reserves for the support of schools, subject, however, to a selection by the President for military purposes. 2 Story's Laws U. S. 1257. 6. The act of the 13th June, 1812, contemplated no further action by the recorder in relation to lots; whatever lots Congress intended to be confirmed, are confirmed by the first section of the act proprio vigore, and all not confirmed by that section are reserved by the second section. The recorder had no power whatever over these lots. Benton v. Vasseur, 1 Mo. R. 300; Strother v. Lucas, 12 Peters, 454.7. If no portion of the piece of ground in controversy was a lot before the 20th December, 1803, as supposed in the fourth instruction asked for by the defendant, it would follow, that Mad. Lachaisse could have no title to it under the act of 13th June, 1812 (see Newman v. Lawless, decided by this court); but it would, that the defendant was entitled to a verdict. The second section refers to the then present; the language is, “lots, &c., included within such survey, which are not rightfully owned or claimed by any private individual, & c., are reserved for the use of schools.” A piece of ground which was not a lot in 1803, therefore, though inhabited and cultivated prior to that period, becomes a school lot precisely for the reason that it cannot be rightfully claimed as the lot of an individual. 8. If the piece of ground in controversy was not a lot of either description in 1803, which is probable, since the ground between the two fortifications was kept vacant under a reservation for military purposes, yet, if the certificate of Soulard, given in evidence by the defendant, proves anything, it proves that Main street extended along the whole front of the ground, and that a cross street, also, was to be located there; so that the ground in controversy was then a lot, and it is proved that it was a lot in 1809 or 1810, whether a town lot or out-lot is immaterial. 9. Whether he land. in controversy is to be regarded as having been a lot in 1803, or otherwise, is immaterial, since it was not inhabited, cultivated, or possessed prior to 20th December, was not confirmed to any one by the commissioners, nor held by a complete grant, and consequently, was “not rightfully owned or claimed by any private individual” on the 13th June, 1812, and is therefore reserved by the second section, and appropriated to the purposes therein declared. 10. On the 13th June, 1812, the ground in controversy was a lot, separated by established boundaries from all other lands. A piece of land with defined boundaries, whatever its shape, is a lot; and this was bounded, as all the lots east of Main street are, west by Main street; on one side by a street, and on the other by the land of some other persons, and east by the river; and not being then rightfully claimed by any individual, is appropriated to the uses expressed in the second section. 11. Every statute ought to be construed according to the intent thereof of the Legislature, rather than the letter. 3 M. & S. 510; 2 Term R. 161; The People v. Union Ins. Co., 15 Johns. R. 358. A thing within the intention is as much within the statute, as if it were within the letter. Bac. Abr., title Statute, letter I.; Coonce v. Munday, 3 Mo. R. 373; ibid. p. 496; applying these rules to the interpretation of the act of 13th June, 1812, that all lands within the outboundary of the survey directed by the first section, which were not, on the 13th June, 1812, rightfully claimed or owned by any individual, are reserved for the declared purposes. This appears, by excepting the commons, which certainly might well be said not to be a village lot, out-lot, or common-field lot; but the exception shows that Congress understood that the commons would have been within the appropriation, if not excepted. The object of the appropriation shows the intent of Congress to reserve all vacant lands. 12. The recorder of land titles had no authority to select lands confirmed by the act of 1812, or appropriated by it. His selection and confirmation of Mad. Lachaisse's claim is a mere nullity. 1 Mo. R. 300; 12 Peters, 454. The act of the recorder vested in Mad. Lachaisse, and those claiming under her, no better title than they had previously. 13. The second section of the act of 13th ...