Papin v. Hines

• Decision Date: 31 March 1856
• Citation: 23 Mo. 274
• Parties: PAPIN, Plaintiff in Error, v. HINES, et al., Defendants in Error.
• Court: Missouri Supreme Court

23 Mo. 274

PAPIN, Plaintiff in Error,

v.HINES, et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1856.

1. The inhabitation, cultivation and possession required by the act of Congress of June 13th, 1812, are actual possession, &c.

2. It is a fatal objection to a claim of title under this act, that it does not appear from the report of the commissioners that the concession contained a special location, or that it had been actually surveyed before March 10th, 1804, by a surveyor duly authorized by the government making the grant.

3. The act of Congress of April 12th, 1814, does not, proprio vigore, confer a legal title.

4. In a suit brought by A., claiming under the act of July 4, 1836, against B., claiming under a patent dated June 15th, 1826, it will be of no avail to A. to prove that the land sued for is embraced within the outboundary line of the town of St. Louis. The patent will, in such a contest, prevail over the confirmation.

Error to St. Louis Land Court.

The facts sufficiently appear in the opinion of the court.

Reber and Buckner, for plaintiff in error, cited Gamache v. Pequinot, 17 Mo. 310, 325; City of St. Louis v. Toney, 21 Mo. 243.

Shepley and Todd, for defendant in error, cited Sarpy v. Papin, 7 Mo. 503; Menard's heirs v. Massey, 8 How. 293; Burgess v. Gray, 16 How. 48.

RYLAND, Judge, delivered the opinion of the court.

The plaintiff claims the land involved in this controversy under three different and independent confirmations, which he alleges were made of the Spanish title of Joseph Brazeau. He asserts that the tract, including the land in dispute, was a lot belonging to the town of St. Louis, possessed by Brazeau prior to the 20th of December, 1803, and that his title thereto was confirmed by the act of 13th June, 1812. He next asserts that if Brazeau's title was not confirmed by the act of 1812, the claim was so spread upon the report made to Congress by the commissioners of the first board, that it was confirmed by the act of 12th April, 1814; and lastly, he asserts that the title of Brazeau was confirmed by the act of 4th July, 1836. The defendants claim the possession of the land under a patent issued by the United States on the 15th June, 1826, under an entry in the land office.

We will examine the different pretensions set up by the plaintiff under the several confirming acts of Congress. We have not here any recognition of the title to this tract of land by the United States authorities as a title confirmed by the act of 13th June, 1812, nor would it appear that any person interested in the claim ever supposed that the title was confirmed by that act; but, on the contrary, both the claimant and the government evidently supposed that the title required a confirmation by the board which was organized under the act of 1832; for before that board the claim was presented by the claimants, and the report upon it was confirmed by the act of July 4th, 1836.

It is apparent that Brazeau asserted before the first board of commissioners three claims, and that the board acted upon them as three distinct claims; the first for ten arpens in front on the river, extending to the road to Carondelet, as conceded to him in 1786; the second for two arpens in front on the river, with the same depth, which he had acquired from Benito Vasquez; and the third for an augmentation, conceded to him in 1799. The first of these claims was approved of and ordered to be surveyed; the second was at first rejected, but afterwards ordered to be surveyed; and both were afterwards regularly surveyed for him by the authorities of the United States. The claim under the concession of 1799 was rejected, and this is the claim which includes the land in controversy. The evidence shows possession of the first two tracts under the Spanish government and continued cultivation; but, in respect to the land included within the concession of 1799, there is no evidence of possession.

The confirming act of 13th June, 1812, rests upon the actual possession, for that is the sole consideration which influenced Congress to make the confirmation. It is not a question, under that act, whether the claimant had a concession from the Spanish government or not; or whether there was a survey under that government or not. If there was a lot inhabited, cultivated or possessed coming within the designation contained in the act, it was confirmed without any regard to Spanish title. The possession, then, was not to be a possession inferable from title, but an actual possession-- possessio pedis. In order to answer this demand of the act, resort is now had to the actual possession of the land east of the Carondelet road, and acted upon by the first board of commissioners as aforesaid, the virtue of which is to be transferred to the land included in the concession of 1799. But if we bear in mind that the act of 1812 does not rest upon written evidence of Spanish title, and that at the date of that act the claims of Brazeau were not only separate by the mode in which they were presented and prosecuted before the board of commissioners, but were further separated by the action of the board as aforesaid, we will find that the act of 1812 never contemplated the confirmation of a tract of land separately granted and claimed, and of which there had been no actual possession. The possession of the land east of the road had been established before the commissioners, and had had its influence in producing the action they had taken thereon, but had no influence with them in relation to the distinct claim west of the road. To interpret the subsequent act of 1812, so as to give a title to this land without an actual possession of it, would be to give the land without the consideration which prompted to the passage of the act. This view dispenses with the consideration of all questions as to whether a tract of land, which has never been recognized by the United States as a lot upon which the act of 1812 operated, and which has never been claimed under that act, can be now supposed to be confirmed by that act merely because it is included within the...