Pacific R.R. v. McCombs
| Decision Date | 31 October 1866 |
| Parties | THE PACIFIC RAILROAD, Appellant v. LIZZIE MCCOMBS et als., HEIRS OF PETER LINDELL, Respondents. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Common Pleas.
This was an action of ejectment to recover possession of part of fractional sections 8 and 18, T. 45 N., R. 7 E., in St. Louis county, which lies within six miles of plaintiff's road.
At the trial, plaintiff's title was as follows:--Act of Congress of June 10, 1852, granting to the State of Missouri the even numbered sections within six sections in width on each side of said road--10 U. S. Stat. 802; and act of Missouri of December 25, 1852, transferring this grant to the plaintiff--Acts 1852-3, p. 10, § 1.
Evidence was then given to show that the railroad ran through the centre of T. 45 N., R. 7 E., and that the lands sued for were within six sections of the road; that the plats of the location of the road had been duly filed at the General Land Office, in the district land offices, with the Secretary of State, and in the Recorder's office for St. Louis county, as required by the statutes.
The defendants' title rested upon a New Madrid location certificate, in the name of Joseph Hunot's legal representatives, No. 161, issued August 12, 1818; (a survey was made in 1821, but was not returned to the Recorder of land titles;) survey made and recorded May 22, 1859, and returned to Recorder of land titles May 23, 1859; Patent of United States dated August 30, 1859, issued after suit begun; act of Congress of June 30, 1864; and Private Acts of 1863-4, p. 7, relinquishing title of United States to Joseph Hunot and other New Madrid locations, saving all adverse rights.
The land sued for interfered with some lots confirmed in Grand Prairie common field. Plaintiff waived all claim to such lots, and admitted that defendant had the Hunot title and had held possession under it since 1829.
The case was tried by the court as the questions presented were all questions of law, and turned upon record evidence almost entirely.
The instructions given by the court declared that the plaintiff had the better legal title and would have been entitled to recover, but was estopped by its own acts from setting up title to the land. The supposed estoppel originated in the following manner:--By the act of Congress of June 10, 1852, § 2, in case any of the even numbered sections within six sections of the road had been previously sold or granted by the United States, or the right of pre-emption had attached thereto, then the Governor of the State might appoint an agent to select other lands, if vacant, and within fifteen miles of the railroad, when located, in lieu of such even numbered sections, within six miles, which had been granted or sold. After the State had transferred its grant to the plaintiff, the Governor appointed an agent to select land in lieu of those granted. After the return of the plat of the location of the road to the General Land Office, an estimate was then made as to the quantity of land to which the State was entitled within six miles:
Lands supposed to be vacant Acres, 766,149.08 Lands supposed to have been sold Acres, 395,040.97 Total of lands to which the Pacific Railroad was entitled, Acres,
In making this estimate, sections 8 and 18 of T. 45 N., R. 7 E., sued for, were considered as having been sold in making up the list of lands.
The Commissioner of the General Land Office, under the acts of Congress of June 10, 1852, and August 3, 1854 (10 U. S. Stat. 346), issued to plaintiff a list of the lands supposed to have been granted by the act of June 10, 1852, within six miles of the road, and another list of the lands selected:
Within six-mile limit Ac. 762,536.75 Within fifteen-mile limit Ac.
In 1854, additional lists were issued:
Within six-mile-limits Ac. 1,743.24 Within fifteen-mile limits Ac.
Had these lists been correctly made out and no errors discovered, the Pacific Railroad would have had certified to it the quantity of land to which it would have been entitled; but a subsequent examination of the lists showed that some of the lands certified had been previously entered, or pre-emptions had attached; and the Land Department, after these errors had been corrected, found that the Pacific Railroad had not received all the lands to which it was entitled, and that it was still entitled to 3,162 53-100 acres to make up the quantity granted by the United States. The lists when corrected stood as follows:
| Original six-mile list |
| 761,589.97 |
| Additional six-mile list |
| 946.78 |
| _ |
| 762,536.75 |
| Original fifteen-mile list |
| 393,793.59 |
| Additional fifteen-mile list |
| 1,743.20 |
| _ |
| 395,536.79 |
| Ac. |
| 1,158,073.54 |
| Balance |
| Ac. |
| 3,162.53 |
| Total granted by the act |
| Ac. |
The plaintiff, therefore, had not virtually received all the land to which it was entitled, and had not received it at the time of the trial.
The suit was commenced January 22, 1859.
The following instructions were given for plaintiff:
1. The act of Congress of June 10, 1852, granting lands to the State of Missouri, and the act of the General Assembly of December 25, 1852, conveyed to the Pacific Railroad the alternate sections of land, designated by even numbers, for six sections in width on each side of the Pacific railroad, commencing at the city of St. Louis and running westwardly to the boundary of the State, on the line of the definite location of said road, excepting lands previously sold or to which the right of pre-emption had attached. If, therefore, the jury find from the evidence that the premises sued for, to-wit, fractional sections eight and eighteen of T. 45 N., R. 7 E. of 5th P. M., are within the distance of six sections of the Pacific Railroad as located and built through said township 45 N., R. 7 E., then the plaintiff has shown a legal title to so much of said sections eight and eighteen as are south of U. S. Surv. No. 2620 in the name of Delisle and without the U. S. surveys Nos. 1663, 1664, 1665, 1813, 1814, 1340 and 3052, and is legally entitled to recover the possession of said premises with the rents and profits thereof from the commencement of this suit, unless said plaintiff has selected other lands in lieu of said sections eight and eighteen.
2. If the plaintiff has not selected the full quantity of land to which it would be entitled under said act of Congress, the plaintiff is not estoppel from claiming said fractional sections eight and eighteen, although the plaintiff and the United States may have supposed that said sections had been sold or disposed of. The court gives this instruction No. 2, with this addition, that if the plaintiff selected the full quantity of land it was entitled to, and the Secretary of the Interior approved such selection, and that such selection included lands taken in lieu of the sections parts of which are sued for, and that these sections and the Secretary's approval of them stood upon the records of the Commissioner of the General Land Office and in the office of the plaintiff at the time the patent was issued under which defendants claim, the plaintiff could not after the said patent was issued change the said selections, on account of any alleged errors or omissions, so as to affect or impair the defendant's title.
3. The defendant claiming under patent in the name of Joseph Hunot and the U. S. survey thereof No. 2500, offered in evidence by the defendant, shows no title that can avail against the legal title of the plaintiff, if the jury believe as in the first instruction given for the plaintiff.
4. The patent to Joseph Hunot dated August 30, 1859, shows no title in the defendants of a date older than the date of the patent, and the recitals in said patent afford no legal evidence to show a title of a date older than the patent against the claim of the plaintiff claiming under the act of Congress of June 10, 1852.
Plaintiffs instruction refused:
5. The plaintiff is not estopped from claiming said fractional sections 8 and 18, or so much thereof as lies outside of the Grand Prairie common fields, by the fact that the railroad company and the land office at Washington, laboring under a mutual mistake, treated said land as sold or disposed of by the United States in fact, if in fact said land had not been sold or disposed of, unless the plaintiff has actually selected and received all the lands to which it was entitled under said act of Congress of June 10, 1852; and the plaintiff has not received all the lands to which it was entitled if it appear that the even numbered sections of lands within six miles were certified as unsold and vacant, or that any of the lands selected in lieu of lands sold had been previously sold, and that, to correct the errors thus made, the plaintiff is still entitled to select a large quantity of lands under its grant.
Defendants' instructions given:
1. If the court finds from the evidence that the selections of all the lands to which the Pacific Railroad Company was entitled under the grant of 10th of June, 1852, were made and completed in the year 1854, and that the same were duly certified to the railroad company in two lists, called the six-mile list and the fifteen-mile list; and that supplemental lists were made, closing up the account for the balance of the lands claimed by the agent of the State and the agent of said railroad in the same year; and if the court further finds from the evidence that the lands sued for in this section were not claimed, marked, or designated on said lists, or either of them, and that other lands were selected by the authorized agent of said railroad company in lieu of the lands sued for, then the court will find for the defendants.
2. If the original lists and supplemental lists of land selected by the authorized agent of the plaintiff and of the State included all the acres of land to which the plaintiff was entitled, and the land sued for was not selected, and other lands in lieu thereof were selected for said plaintiff by the agent of the...
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