Harrison v. Page

• Decision Date: 31 March 1852
• Citation: 16 Mo. 182
• Parties: HARRISON, Respondent, v. PAGE, Appellant.
• Court: Missouri Supreme Court

16 Mo. 182

HARRISON, Respondent,

v.PAGE, Appellant.

Supreme Court of Missouri.

March Term, 1852.

1. Page v. Scheibel, 11 Mo. Rep. 167, affirmed.

2. To establish that a lot was a common field lot, within the meaning of the act of 1812, it is not necessary to show that the village authorities under the Spanish government exercised any authority over it or its owner.

3. A common field lot was one of a series of lots in the vicinity of the village, occupied and cultivated by the inhabitants of the village in a common field.

4. That a lot was not embraced within a Spanish survey of the common fields is slight, if any evidence, that it was not a common field lot.

5. Where a deed, describing the land conveyed by reference to a Spanish concession, was executed at a time when such concession had been located and confirmed by the United States government, and there is no call in the concession inconsistent with such location, the deed will be held to pass the land on which the concession has thus been located.

Appeal from St. Louis Court of Common Pleas.

This was an action of ejectment, brought by Harrison in the St. Louis Court of Common Pleas, on the 29th of August, 1848, against Francis W. Page, for two by forty arpens of land lying in the Grand Prairie, about three miles from St. Louis. It was tried in October, 1850, and resulted in a verdict and judgment for the plaintiff, for some two or three acres of the eastern end of said tract.

The plaintiff's title was a confirmation by the recorder of land titles, to Chancillier's representatives, referring to livre terrien, No. 1, page 9, for the warrant or order of survey. He gave in evidence the survey of this confirmation by the United States, numbered 1561; also, the survey by Duralde of lots of Picard, and of Mainville dit Dechesne, in the same range of common fields, a little further north, taken from livre terrien, No. 2. The Picard and Mainville lots were side by side, and in describing them, Duralde says as follows: In the Picard lot, “et tient immêdiatement d'un coté à celle de Joseph Tayon, et de l'autre en partie au domaine du roi, et en partie à celle du Sieur Dechesne, celle-ci, étant plus avancée vers l'est de neuf arpents trente six pieds,” etc.; and in Mainville dit Dechesne's lot, “est situè et tient immêdiatement d'un cotè à celle du nommè Routier et de l'autre en partie au domaine du roi, et partie á celle du nommé Picard, celli-ci étant plus avancée vers l'ouest de neuf arpents, trente six pieds,” etc.

The plaintiff also gave in evidence a judicial sale of the property of Chancillier, wherein it appears that a half arpent of land in the Grand Prairie was sold to Louisa Dechamp, widow of Chancillier, also deeds as follows:

5th of April, 1834. Alexis Chancillier and Louis Chancillier to Matthew R. Boyce--1/2 by 40 arpens, residue of 2 by 40 arpens granted to Chancillier in Grand Prairie, in livre terrien. The grantors say they are grand-sons of Chancillier.

26th of June, 1835. Strother and wife and Lawless to said Boyce--1/2 arpent by 40 in Grand Prairie.

12th of September, 1828. Marie Louise Laroque, widow of Basil Laroque, to George F. Strother--all her right in all the property of her first husband, Chancillier, and 1/2 arpent by 40.

12th of May, 1834. Josephine Chancillier and Geneviève Chancillier to said Boyce--same description as in the deed of Alexis and Louis. They say they are grand-daughters of Chancillier.

25th of August, 1836. Gabriel Marlow and Julia, his wife, to said Boyce (said Julia being a grand-daughter, as she says). Same description.

9th of May. 1847. Hypolite Bernard and Marie Therese, his wife, to Boyce--2 by 40 arpens in Grand Prairie, bounded south by Calvè and north by Kiercereau.

21st of August. 1847. Charles F. Lefaivre and Cecile, his wife, to Willis L. Williams--their interest in 2 by 40 arpens, granted to Chancillier; livre terrien, No. 1, page 9, and being survey 1561.

10th of May, 1848. Matthew Boyce to Williams--a part of said 2 by 40 arpens, survey 1561--eastern part, containing about seven arpens.

10th of May, 1848, Williams and wife to Harrison--same as in the last deed, seven arpens.

According to the survey of the United States of the Chancillier field lot of 2 by 40 arpens, its eastern end was on a line with the surveys of the adjacent common field lots, at the north, till reaching the division line between the lots of Picard and of Mainville, and there is an offset of nine arpens and thirty-six feet to the west, so that from that point the base or eastern line of those common field lots in the Grand Prairie, going towards the north, is 9 arpens 36 feet further west than the eastern line of the common fields south of that point. The defendant contended that the field lots south of the Picard tract were improperly located and surveyed so far towards the east; and that by the true reading and construction of Duvalde's surveys, the offset should not have been so made as to bring down the field lots, comprehending Chancillier, 9 arpens 36 feet further to the east than the base line of the Picard lot, and the other lots north of it. According to the location contended for by the defendant, the Chancillier tract would not interfere with the defendant's land; but, by its location so far to the east, its eastern end interfered with defendant's possession and enclosure, some two or three acres.

There was evidence given by plaintiff, tending to prove that the location made by the United States survey was correct; and, on the other side, the defendants gave evidence tending to prove that the said concession to Chancillier was at another place, and nearly half a mile further north, in said range of common fields; and that the offset of 9 arpens and 36 feet should not have been so made as to bring down the common field lots south of Picard that distance further east than the eastern line of the Picard lot and the lots north of it.

The following instructions, asked by the plaintiff, were given by the court:

1. If the jury find, that for several years prior to the 20th of December, 1803, there were lots of one or more arpens front by 40 in depth, possessed and cultivated as common field lots, in the Grand Prairie of St. Louis, adjoining those which were granted, and that such lots were occupied, possessed, used or cultivated in the same manner as the granted lots of the same description, then the lots so occupied, possessed, used and cultivated, are common field lots, within the meaning of the act of Congress of the 13th of June, 1812, although there may have been no written grant, or official survey thereof by the Spanish government.

2. If the jury find that Chancillier, or his representatives, claimed such a lot of 2 by 40 arpens in the Grand Prairie, and possessed or cultivated the same prior to the 20th of December, 1803, then the same was confirmed by the act of the 13th of June, 1812, unless the same was abandoned by said Chancillier, or his representatives.

3. The confirmation to Chancillier's representatives, given in evidence, is a confirmation of the title to 2 by 40 arpens in the Grand Prairie common fields, as cultivated and possessed by Chancillier, or his representatives, prior to the 20th of December, 1803, and the survey No. 1561 is evidence of the extent and boundaries of said confirmation.

4. If the jury find from the evidence that Chancillier, or his representatives, mentioned in the report of the recorder, possessed or cultivated a lot or parcel of land of 2 by 40 arpens, in the Grand Prairie common fields, prior to the 20th of December, 1803, the title to said land was vested in Chancillier's representatives, notwithstanding it may appear that it does not correspond with the description of the concession referred to by the recorder of land titles in his report given in evidence.

5. If the land in controversy is within the boundaries of the confirmation to Chancillier's representatives, then Martin Coontz and his representatives acquired no title thereto by virtue of the New Madrid certificate, location and survey, and other documents given in evidence by the defendants.

In addition to the above the court, of its own motion, gave the following:

1. A common field lot, within the meaning of the act of June 13th, 1812, is a lot in the neighborhood of one of the villages or towns enumerated in said act, used by an inhabitant of said town or village for purposes of cultivation; said common field lots being in the form of parallelograms, usually from 1 to 3 arpens in front by 40 in depth, lying adjacent to each other, in the same general ranges of lots, all in the same range being protected by a common fence in front, and each of them separated from that adjoining by a small strip of land a few feet in width, left uncultivated, so as to mark its limit or boundary, and the division lines between the respective lots of said cultivators.

2. The United States survey, No. 1561, offered in evidence by the plaintiff, is prima facie evidence of the extent and correctness of the boundaries of the lot confirmed to Louis Chancillier, or his legal representatives, and should be received as correct, unless the defendant has proved to the satisfaction of the jury that it is erroneous.

3. If the eastern line of the United States surveys, Nos. 1296, 1461, 3303 and 3304, conforms to the eastern boundary of the same lots, as surveyed by authority of the Spanish government, and the land confirmed to Louis Chancillier, or his legal representatives, is 2 by 40 arpens, lying adjoining and south of the United States survey No. 3304, the jury should consider that fact as corroborative of the correctness of said United States survey No. 1561.

4. If the jury believe from the evidence that the land in controversy in this suit is within the boundaries of the tract or lot of 2 by 40 arpens, in the Grand Prairie common fields, confirmed to Louis Chancillier, or his legal representatives, and that said Chancillier had a grant or concession...