Robbins v. Eckler

• Decision Date: 31 October 1865
• Citation: 36 Mo. 494
• Parties: W. A. ROBBINS et als., Plaintiffs in Error, v. HENRY ECKLER, et als., Defendants in Error.
• Court: Missouri Supreme Court

36 Mo. 494

W. A. ROBBINS et als., Plaintiffs in Error,

v.HENRY ECKLER, et als., Defendants in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to St. Charles Circuit Court.

This was an ejectment to recover possession of so much of lots 14 and 20 of block 4 of Evans' survey of St. Charles commons as conflicted with United States survey No. 164 of an out-lot or common-field lot, in the cul de sac common fields, confirmed to Auguste Chouteau under J. B. Lacroix.

The plaintiffs claimed title under the Town of St. Charles, by virtue of a lease executed Mar. 5, 1856, of a part of the commons of said town in renewal of leases surrendered.

The defendants denied that the lease under which plaintiffs claimed covered the land in controversy, and also claimed title under the confirmation and survey to Chouteau.

The plaintiffs presented in evidence the claim of the Town of St. Charles to commons presented to the old board of commissioners and Soulard's survey of said commons certified March, 1804. On this survey of Soulard's, the cul de sac fields which are in the commons have a different direction from that given them in the United States survey of said fields and commons.

In 1817, Evans made a survey of the lands at St. Charles and sectionized them, connecting his surveys with the cul de sac fields, giving them the same location afterwards given them by Brown when he surveyed the commons and common fields. The out-boundary survey of the villag with its commons and common-fields was in evidence. The survey o the commons made in 1844 was called for by the instructions, but did not appear in the record. This survey (the official government survey) differs from that of Soulard and includes more land.

To prove the acquiescence of the town in Brown's official survey, the defendants offered in evidence the official proceedings of the Town of S Charles, from 1844 to 1855, in relation to said survey of common showing that they directed Brown to be supplied with information for making his survey; that they applied for plats of said survey; that they directed the plat to be filed as the official plat of said commons; that they directed portions of said commons to be subdivided, and lots to be sold in accordance with said plat; that they subdivided and sold parts of the lands included in said survey and not included in Soulard's survey.

The plaintiffs, in making out their case, offered in evidence the claim of Chouteau under J. B. Lacroix as presented to the old board, and the claims as presented and proved before Recorder Hunt. The old board rejected the claim, but Hunt confirmed the same, under the act of 1812, as an out-lot in the cul de sac common fields.

An official survey of the claim was made in 1844, at the same time the commons were surveyed by Brown; and the Recorder of land titles issued a confirmation certificate with a copy of the official survey No. 164, made according to possession and the claim.

Part only of the lines of the Lacroix claim had been run by the survey made July 10, 1796, which survey says the tract contains 324 arpents; Chouteau's claim before Hunt called for 300 arpents, more or less. The defendants proved actual possession of the lot prior to December 20th, 1803.

Evan's survey of block 4 had been lost. In 1833, T. W. Cunningham, by direction of the town, undertook to retrace, Evans' lines, some of which he found, and some he did not find; he made a plat which he thought conformed to Evans' plat. By his survey, lots 14 and 20 of block 4 conflict with U. S. survey No. 164, of the lot confirmed to Chouteau, and the cul de sac common fields.

The defendants offered testimony to show that Cunningham's survey of block 4 did not correspond with Evans', commencing at different points, and showing also that in 1838 he made a survey and subdivision of survey 164, which showed no interference of the subdivisions of block 4. Defendants denied that Evans' survey of block 4 interfered with the cul de sac common fields and survey 164. Survey No. 164 was of a common field lot, of 9 arpents front and rear by 36 deep; the plaintiffs contended that it was only one arpent in the front by nine in the rear, and 36 arpents deep.

The plaintiffs asked nineteen instructions, all of which, except that relating to the rents and profits, were refused.

The defendants asked five instructions, which were given, and thereupon the plaintiffs took a non-suit with leave, &c. and their motion to set aside non-suit being overruled, they took up the case by appeal.

T. W. Cunningham and E. A. Lewis, for appellants.

The court was in error both in its assumptions of fact and in its conclusions of law.

I.--1. No chain of title is shown for defendants from the Lacroix claim. The proof originates their title and possession with Thomas J. Payne in 1839. As the twenty-year limitation law was in force at the ommencement of this suit in 1858, the defendants thus show no available title in themselves from any source: nor do they make the Lacroix claim available as an outstanding title; for an outstanding title, to be available as a defence, must be such as would support an action of ejectment. But the last actual possession under the Lacroix claim shown anywhere in the evidence is that of Lacroix himself, in 1804. Such a claim of title is expressly barred by the statute. (R. C. 1845. p. 715, § 1.)

2. The survey of the out-boundary of the commons had nothing whatever to do with the western line of the cul de sac common fields, or any other interior line of the commons. Nowhere do these lines coincide or meet each other.

3. Brown's survey of the out-boundary not undertaking, nor even authorized, to fix the locality of the cul de sac common fields, not making any connection with them at any point, and only introducing them by way of diagram upon the plat, there cannot of course exist any conflict between the respective surveys of these two different localities; nor can the former sustain or prove the validity of survey No. 164.

4. The lease itself from the City of St. Charles to plaintiffs shows that the title of the latter originated in 1831.

II.--1. The office of a survey is not to supersede the original grant, but merely to ascertain its locality. It can neither enlarge nor diminish the rights of grantees; and in as far as it assumes to do either, it is null and void. The survey No. 164 making a parallelogram of 324 arpents, must therefore succumb to the grant of a wedge-shaped figure, whose boundary lines, by the simple rules of arithmetic, can only contain 162 arpents. (Ott v Soulard, 9 Mo. 581, 603; Boyce v. Papin, 11 Mo. 25; U. S. v. Huertas, 8 Pet. 475; U. S. v. Levi, 8 Pet. 481-2; U. S. v Huertas, 9 Pet. 171; Smith v. U. S. 10 Pet. 326, 331; U. S. v. Forbes, 15 Pet. 173, 182; U. S. v. Breward, 16 Pet. 146; Orrick v. Bower, 29 Mo. 210; Kissell v. Pub. Schools, 16 Mo. 586; Jourdan v. Barrett, 13 La. 43; Kittridge v. Landry, 2 Robinson, La. 78.)

True, as to this point, there is sometimes a distinction between the recognition, by way of grant or confirmation, of an existing claim, and an original grant coupled with a condition that it is to be located by future survey. In the latter case only the survey is conclusive. But the common grant, under the act of 1812, belongs to the former and not to the latter class. (Magwire v. Tyler, 25 Mo. 484; Dent v. Sigerson, 29 Mo. 513; Carondelet v. St. Louis, 25 Mo. 448, 460-62 S. C.; 1 Black., U. S. 187.)

Even in cases where the survey is conclusive as between the United States and the grantee, it is not so as to third parties (as the plaintiffs in this case), who are not estopped thereby. (Menard v. Massey, 8 How, 293, 314.)

The survey of the out-boundary could have no effect whatever upon the lines of the claim lying within it. Its only object and effect were to sever the confirmed claims “in a mass” from those lying without it. (Mackey v. Dillon, 4 How. 446; Milburn v. Hortiz, 23 Mo. 532-8; Tayon v. Hardman, 23 Mo. 539-43; Schultz v. Lindell, 24 Mo. 567-70; Kissell v. Pub. Schools, 16 Mo. 587.) And yet the fourth instruction given for defendants assumes as a fact proven that this survey verifies survey 164, and that the acceptance of one binds the city and its grantee to the other.

2. The act of June 13, 1812, was a conclusive grant of the commons as they then existed, with no reservation or condition as to any future survey; and no authoritative survey shows how or where they then existed, with reference to the interior lines, other than the Spanish survey of Mar. 2, 1804. (Glasgow v. Hortiz, 1 Black., U. S. 595; see also authorities above cited.)

III. The alleged estoppel against plaintiffs had no foundation in fact or in law: Because,

1. The evidence shows that the plaintiffs' title from the city arose long prior to the assumed acts of acceptance of the survey on the part of the latter.

2. The plaintiffs were in no sense parties, nor was the city corporation, to the survey of the Lacroix claim, and therefore could not be estopped by it.

3. The survey of the out-boundary not affecting the line in controversy, neither the city nor its grantees could, by any acceptance of that survey, be estopped touching the line in controversy.

4. The defendants are not authorized to set up the alleged estoppel, since they show no sort of connection in themselves with the subject matter; not showing title in themselves under the United States, and not being parties or privies to the alleged acts of estoppel. (Cottle v. Snyder, 10 Mo. 763.)

IV. The instructions given for defendants are all erroneous, as inconsistent with the foregoing propositions. The first instruction assumes the acceptance of the survey of the out-boundary by the city as a fact proven. The second instruction affirms the acceptance as a conclusion of law, when it ought to have been left as a question of fact for the jury to decide. (Carondelet v. McPherson, 20 Mo. 205.) The fourth instruction is erroneous in assuming the application of the...