Milburn v. Hortiz

• Decision Date: 31 October 1856
• Citation: 23 Mo. 532
• Parties: MILBURN AND OTHERS, Respondents, v. HORTIZ, Appellant.
• Court: Missouri Supreme Court

23 Mo. 532

MILBURN AND OTHERS, Respondents,

v.HORTIZ, Appellant.

Supreme Court of Missouri.

October Term, 1856.

1. The confirming force of the act of congress of June 13, 1812, extends to common field lots, out-lots, &c., as well without as within the survey of the outboundary line of the town of St. Louis, the plat of which survey is commonly known as “Map X.”

Appeal from St. Louis Land Court.

This was an action of ejectment, brought by William Milburn and others, as commissioners appointed by the St. Louis County Court under authority of an act of the general assembly of 1851, March 3, to recover possession of part of the 16th section in St. Louis township. On the trial below, plaintiffs adduced the following evidences of title:

1. Acts of Congress of March 6, 1820, entitled “An act to authorize the people of Missouri territory to form a constitution and state government,” giving to the state, on certain conditions, the 16th section of each township.

2. An ordinance of July 19, 1820, declaring the assent of the people of the state of Missouri to the foregoing act of Congress.

3. The act of the general assembly of Missouri of March 3, 1851, “to authorize the sale of fractional section 16, township 45 north, range 7 east.”

4. The order of St. Louis County Court appointing plaintiffs commissioners to take possession, &c.

5. A certified copy of the plat of survey of township 45 north, range 7 east. It was proven that defendant was in possession of a portion of section 16.

6. Plaintiffs offered in evidence a certified copy of the plat of survey approved 1840, purporting to be a survey of the outboundary line of the town of St. Louis, made by authority of the act of Congress of June 13th, 1812, which plat is commonly known as “Map X.” Defendant objected to the introduction of this plat as irrelevant and incomplete. The objection was overruled.

Defendant, to maintain the issue on his part, offered parol and documentary evidence to prove that the land described in the petition, and of which the defendant had possession, was part of a common field lot, containing one arpent in front by forty in depth, in the Grand Prairie common field belonging to the town of St. Louis; that said common field lot was one of a series of lots lying adjacent to each other in the same general range in the Grand Prairie, and in the vicinity of the town or village of St. Louis; that said lots were possessed and cultivated by the inhabitants of said town or village in a common field prior to the 20th of December, 1803; that said common field lot of one by forty arpens was possessed and cultivated by Francis Bequette, an inhabitant of said town, prior to said 20th of December; that he and his representatives claimed the said common field as owners; that said Francis Bequette died, and that defendant is in possession of the part of the said common field lot sought to be recovered in this suit under title derived from the legal representatives of said Bequette, (of whom defendant is one,) and that defendant holds possession thereof under said title. The court, on the objection of plaintiffs, excluded this evidence on the ground that said common field lot and common field were outside of the survey of the outboundary line of the town of St. Louis, given in evidence. Defendant admitted that said common field is outside of said outboundary line.

Defendant also offered to prove that said survey of the said outboundary line was incorrect in material particulars, and that the outboundary line, directed to be run by the act of Congress of June 13th, 1812, never has been surveyed or run as directed by said act. This evidence was, on the objection of plaintiffs, excluded. A verdict was rendered for plaintiffs.

S. Reber, P. C. Morehead, C. C. McClure, for appellants, cited Page v. Schiebel, 11 Mo. 167; Page v. Harrison, 16 Mo. 182; Eberle v. The Schools, 11 Mo. 247; Trotter v. The Schools, 9 Mo. 69; Gurno v. Janis, 6 Mo. 330; Soulard v. Clark, 19 Mo. 570; City of Carondelet v. McPherson, 20 Mo. 192; Strother v. Lucas, 12 Peters, 410; Chouteau v. Eckhart, 2 How. 344; Guitard v. Stoddard, 16 How. 494.

R. M. Field, with whom were W. L. Williams and B. Bates, insisted that the outboundary line, established by the surveyor general pursuant to the first section of the act of 13th June, 1812, is conclusive upon all parties claiming a confirmation by force of that section; and that no person, claiming title under that section alone, can be permitted to locate any of the enumerated subjects of confirmation beyond that outboundary line. In regard to confirmations of single tracts to claimants, the doctrine of the Supreme Court of the United States has settled conclusively the effect of an official survey upon the rights of a party claiming under such confirmation. In the case of Cochran v. West, (17 How. 403,) it was declared that the party confirmed must take such location as was made by the executive department having charge of the surveys; and it was said in that case to have been always the policy of the United States to give defined limits, by survey, to all public grants of lands. This case really went no further than the previous cases of LeBois v. Bramell, (4 How. 449,) and Menard v. Massey, (8 How. 293.) The same doctrine has been laid down by the same court in the recent case of Kissell v. Public Schools, in which case it is declared with clearness and distinctness that the ascertainment of the true location of a vague and indefinite grant of land by act of Congress falls within the province of the executive department alone, and that the judiciary department, whether state or national, has nothing to do with the matter. The decisions of the Supreme Court of the United States, in regard to the subject under consideration, are conceived to go to this extent, that the boundaries of a tract of land, of vague or uncertain limits, granted or confirmed by the United States, are, according to long established public policy, to be surveyed so as to show the line of separation between what is granted or confirmed and what is still retained as public domain; and that the execution of this duty is in its nature purely executive, with which the judiciary department, state or national, has no concern whatever. The courts of Missouri have nothing to do but to apply these plain principles; and surely there is no doubt or difficulty in their application to the case at bar. The United States, by act of Congress of 13th June, 1812, confirmed to the inhabitants of the town of St. Louis their town lots, out-lots, common field lots and commons, according to possession, inhabitation or cultivation prior to the 20th December, 1803, and ordered the same to be surveyed by the public executive officer by one outboundary line, run in such manner as to include all the subjects of confirmation in one mass, just as they were confirmed. The Supreme Court of the United States, in Mackay v. Dillon, (4 Howard, 446,) speaking of this survey, says: “The object of this proceeding, on the part of the government, was to sever the confirmed claims, in a mass, from the remaining lands of the United States and others outside of the boundary, and nothing more.” Now, it is perfectly plain...