Smith v. St. Louis Pub. Sch.

• Decision Date: 31 March 1860
• Citation: 30 Mo. 290
• Parties: SMITH et al., Appellants, v. ST. LOUIS PUBLIC SCHOOLS et al., Respondents.
• Court: Missouri Supreme Court

30 Mo. 290

SMITH et al., Appellants,

v.ST. LOUIS PUBLIC SCHOOLS et al., Respondents.

Supreme Court of Missouri.

March Term, 1860.

1. The principle upon which the right to alluvion is placed by the civil law--which is essentially the same in this respect as the Spanish and French law, and also the English common law--is, that he who bears the burdens of an acquisition is entitled to its incidental advantages; consequently, that the proprietor of a field bounded by a river, being exposed to the danger of loss from its floods, is entitled to the increment which from the same cause may be annexed to it. This rule is inapplicable to what are termed limited fields, agri limitati; that is, such as have a definite fixed boundary other than the river, such as the streets of a town or city.

2. A lot in a town or village may be entitled to riparian privileges if bounded on a river; yet if, as originally granted, it were bounded or limited on all sides by streets, the owner thereof would not become a riparian proprietor and entitled to alluvion by reason of the fact that the original concession or grant, besides the street, also called for the river in front.

3. In the year 1766, the French commandant at the post of St. Louis granted and conceded to Pierre François De Volsey a lot of ground in said village, of two hundred and forty feet front on the side of the Mississippi and fronting thereto (du côté du Mississippi et y faisant face), by three hundred feet in depth on the side of the woods (du côté du bois), having said front upon the grand (or main) street (tenant la dite face et par devant la grande rue,) in the rear another main street (une autre grande rue), &c. The concession was bounded on the sides also by streets. Held, that the concession did not constitute the grantee a riparian proprietor; that the concession was bounded by the street in front and not by the river; that neither he nor his grantees would be entitled to alluvion formed in front of the street.

Appeal from St. Louis Land Court.

This was an action brought to recover possession of the north half of block No. 854 in the city of St. Louis. The defendants are the Board of President and Directors of the St. Louis Public Schools and the tenants under said board. Said block is bounded as follows: west by Main street, north by Cedar street, east by Front street, or the levee, and south by Mulberry street. In support of their title the plaintiffs adduced the following evidence:

1st. A certificate of confirmation issued by Recorder Hunt under the act of Congress of May 26, 1824. This was issued in the name of Auguste Chouteau, and the land confirmed was described as “bounded on the east by Front street or the Mississippi, leaving a road between it and the lost, west by Church street, south by south I street, and north by south H street.” South H street is now known as Cedar street, south I street as Mulberry street. The plaintiffs offered in connection with this certificate Hunt's minutes of testimony, but the court excluded them on the objection of defendants. These minutes were, however, afterwards introduced by defendants.

2d. A concession made to DeVolsey in 1766. This concession is as follows: “Aujourd'hui, 15 Août, 1766, sur la demande de M. Pierre François DeVolsey, officier dans les troupes de la marine, qui désire s'etablir au poste St. Louis, nous lui avons concedé et concédons, à titre de pleine propriété, un terrain on emplacement pour se batir et y faire tous autres bâtimens de commodité, de 240 pieds de large du côté du Mississipi et y faisant face, sur 300 pieds de profondeur du côté du bois, tenant la dite face et par devant la grande rue, par derrière sur la profondeur à une autre grande rue, d'un côté à une autre grande rue de traverse venant du Mississipi, qui limite ces terrains des Sieurs Blondeau et Lami, et de l'autre côté du nord à une autre rue de traverse venant du Mississipi, pour en jouir par le dit Sieur DeVolsey ou ses ayant cause en pleine propriété, sans pr ´ejudice au charges publiques et autres qu'il plaira à sa majesté d'y imposer, defendant à qui que ce soit de le troubler dans sa concession à peine de désobeissance. Fait à St. Louis dit jour et an. [Signed] St. Ange. Labuxiere.”

The above concession was accompanied by the following translation: “This day, 15th August, 1766, upon the request of Mr. Pierre François DeVolsey, officer in the marine corps, who desires to settle at the post of St. Louis, we have granted and do grant him in full title a lot or dwelling place, where to make other buildings necessary, of 240 feet in front toward (côté) the Mississippi, and fronting thereto, by 300 feet in depth toward (du côté) the woods, bounding the said front upon the grand (or main) street, on the rear by its depth another main street, on one side another cross street running to the Mississippi which bounds the lots of Messrs. Blondeau and Lami, and on the other side to the north another cross street running to the Mississippi, to be enjoyed by the said DeVolsey and his assigns in full property, without prejudice to the public charges and others which it may please his majesty to impose, forbidding whom it may concern to interfere with this concession. Done at St. Louis the said day and year. [Signed] St. Ange. Labuxiere.”

3d. Documentary evidence showing that said block was confirmed to DeVolsey's representatives by the act of Congress of April 29, 1816.

4th. Plaintiffs introduced evidence showing title in themselves under Auguste Chouteau to the north half of said block embraced in said concession to DeVolsey; also showing the situation and boundaries of said concession as possessed and occupied by Auguste Chouteau for many years. It was bounded on the south by Mulberry street, on the west by Second or Church street, and on the north by Cedar street. The land in controversy lies immediately east of the north half of the block No. 42 embraced in said concession and upon the eastern side of Main street. The plaintiffs introduced evidence to show that until a recent period the Mississippi river ran as far west as Main street; that the western bank of the river intersected said block No. 42; that in the year 1814, a snag lodging in the river, a bar commenced forming in the river opposite the city, which gradually became an island; that there was a slough west of this bar through which boats passed at high stages of water, the banks of said slough lying west of Main street and of the land in controversy; that the great floods of 1844 and 1851 caused the filling up of said slough; that previous to the year 1851, said Main street did not run as far south as said block 42, but that said street is now situated where the river formerly ran; that previous to the extension by the city of St. Louis of Main street in front of said block 42, there was a path there passable for men and horses only and not wagons; that this path was along the bank, and previous to the introduction of steamboats was used as a tow-path.

The defendant introduced evidence showing that on the 9th of November, 1809, the town of St. Louis was incorporated; that its boundaries included the land in controversy; that on the 9th of June, 1810, the board of commissioners confirmed a lot of 240 feet by 300 feet, embraced in the DeVolsey concession, to Auguste Chouteau, as DeVolsey's representative, and ordered “that the same be surveyed conformably to the possession;” that on the 13th of December, 1811, the commissioners issued their certificate in said Chouteau's favor; the same was recommended for confirmation by Recorder Bates, and confirmed by act of April 29, 1816, to DeVolsey's representatives, 240 feet by 300 feet, to be surveyed; that Recorder Hunt issued his certificate of confirmation to Auguste Chouteau for said block of 240 feet by 300, bounding it as above set forth. The defendants also introduced United States survey No. 173 of St. Louis lands. This was a survey made in 1835 of the three confirmations above set forth of the DeVolsey concession. By this survey the concession and confirmation were limited to block No. 42, and bounded east on First or Main street, and west on Second street. This survey was approved in 1850. The defendants also introduced in evidence, against the objection of plaintiffs, a plat of St. Louis known as Chouteau's plat. This was not an official survey, but was admitted as evidence against plaintiffs claiming under Chouteau. The defendants also showed an assignment and designation of the land in controversy for the use of schools. This assignment and survey embraced the whole block immediately east of block 42; it embraced the land in controversy; it was made in 1844.

The court, on motion of defendants, gave the following instruction to the jury: “Under the evidence offered by the parties respectively, the plaintiffs are not entitled to recover, and the jury is therefore instructed to find for the defendants.”

The plaintiffs asked and the court refused the following instructions: “1. If the jury believe from the testimony that before the 20th of December, 1803, Auguste Chouteau and those under whom he claimed had inhabited, cultivated or possessed block 42 in the town of St. Louis, claiming the front on the Mississippi river, and that he conveyed the north half of said block, bounding it east by said river, to his daughter Emilie Smith, and that the plaintiffs are the children and only heirs of said Emilie Smith, and that the land sued for has been formed by accretion from the deposits of the river added to said north half of said block 42 since the year 1844, then the plaintiffs, as owners of the shore, are entitled to such accretions as riparian owners, and the jury will find for the plaintiffs. 2. If there never was in actual fact any street in front of said block 42 laid out and used prior to 1851, actually existing and known as Main street, then the call for a street, road or tow will not deprive the plaintiffs of their...