Primm v. Haren

• Decision Date: 31 March 1858
• Citation: 27 Mo. 205
• Parties: PRIMM et al., Appellants, v. HAREN, Respondent.
• Court: Missouri Supreme Court

27 Mo. 205

PRIMM et al., Appellants,

v.HAREN, Respondent.

Supreme Court of Missouri.

March Term, 1858.

1. Quere, can Carondelet be shown to have title to land as common under the statute of limitation?

2. The United States survey of Carondelet common includes private claims; hence, it would be erroneous to rule that twenty years' claim and user as common, by the inhabitants of Carondelet, of the land embraced in said survey, would bar the right of a private claimant who seeks to recover possession of land embraced in said survey as confirmed to him by act of Congress of June 13, 1812.

3. The recorder of land titles was not authorized by the act of Congress of May 26, 1824, to take proof in relation to the extent and boundaries of common confirmed to a village by the act of Congress of June 13, 1812; consequently, a certificate of confirmation of common issued by him would not be evidence of title thereto.

4. It is the province of the court to construe written instruments; where, however, they are adduced as containing evidence of facts, the jury are authorized to draw such inferences from them as they may deem warranted.

Appeal from St. Louis Land Court.

This was an action to recover possession of part of a tract of six by forty arpens, alleged to have been confirmed to J. B. Gamache, Sr., or his legal representatives, by act of Congress of June 13, 1812. The land sought to be recovered lies within the United States survey of Carondelet common. Defendant claims title under the confirmation of the common of Carondelet. The titles are the same in general as in the case of Gamache v. Piquinot, 17 Mo. 315.

The court, at the request of plaintiffs, gave the following instructions: “1. The jury are instructed that inhabitation, cultivation or possession of a part of a lot, claiming the whole, is in law a cultivation or possession of the whole lot claimed, within the intent and meaning of the act of Congress of 13th of June, 1812. 2. If the jury believe from the evidence that John B. Gamache, Sr., was an inhabitant of the village of Carondelet prior to the 20th December, 1803; that he claimed, cultivated and possessed the tract of land in the petition mentioned, as an out-lot or cultivated field-lot, adjoining or belonging to said village, they will find for the plaintiff for one-fourth of the portion of said tract they shall find to have been in defendant's possession at the commencement of this suit.” The court refused the following instruction asked by plaintiffs: “3. The jury are instructed that the defendant has given no such evidence of adverse possession of the land in controversy in this case for more than twenty years prior to the commencement of this suit, as is sufficient in law to constitute an adverse possession that can bar this suit.” To which refusal plaintiff excepted.

The court gave, at the request of defendants, the following instructions: “1. If the jury find that the land in controversy was claimed and used, under Spanish authority, by the inhabitants of Carondelet, as part of their common prior and up to the 20th day of December, 1803, and continued to be so used and claimed afterwards until the year 1813, and is in fact embraced by the survey of such common made by the authority of the United States as a part of such common, then the plaintiff cannot recover, and the jury ought to render a verdict for the defendant. 2. If the jury believe that Gamache, without any claim as proprietor, cultivated a patch of ground within the limits of the common of Carondelet, as claimed and used in Spanish times, and as surveyed by the authority of the United States, he did not by the fact of such cultivation acquire a title to such ground as against the inhabitants of Carondelet. 3. If the jury find that Gamache presented a petition to the Spanish governor, asking for a grant for cultivation of a tract whereof the land in controversy is a part, and such petition was denied on the ground that the land asked for was reserved for commons, then such denial of the petition is evidence tending to show that a subsequent cultivation of a small part of the same tract by Gamache was had without any rightful claim thereto as proprietor. 4. If the jury find that Gamache, prior to 1803, possessed or cultivated a piece of ground south of the common fields of Carondelet, still he did not thereby acquire any title that can avail in the present action, unless the jury are able to determine from the evidence with reasonable certainty the location of the piece of ground so cultivated or possessed. 5. If the jury find that a survey of the large tract of land, called the Carondelet commons, embracing the land in controversy, was made by Rector, under the authority of the United States, and that the corners and lines of such survey were marked by visible monuments on the ground as early as the year 1817, and that the inhabitants of the town of Carondelet from that time forward claimed the land embraced in such survey as their commons, and for more than twenty years next succeeding the 17th day of December, 1818, and up to this suit actually used the said land as commons, by felling timber and making hay thereon, and claiming the same up to the lines of said survey, and prosecuting persons for trespass thereon; the plaintiffs are thereby barred of their rights to recover in this action, and the jury will find for the defendant. 6. The act of 13th June, 1812, and the official survey read in evidence, known as Brown's survey, constitute a title in the inhabitants of Carondelet to the land embraced in the survey as effectual as a patent.”

The jury found a verdict for defendant.

Whittelsey, for appellants.

I. The certificate of confirmation issued by Conway was illegal. The act of 1824 did not authorize the recorder to take proof of common. (Dent v. Bingham, 8 Mo. 579.) Hunt issued no certificate, and Conway had no power so to do in 1834. (Gamache v. Piquinot, 17 Mo. 310; 16 How. 471.)

II. The hearsay testimony of old inhabitants was not legal evidence to prove title to common. (1 Greenl. Ev. 175; 1 Stark on Ev....