State v. Ham

• Decision Date: 31 March 1854
• Citation: 19 Mo. 592
• Parties: THE STATE, Respondent, v. HAM, Appellant.
• Court: Missouri Supreme Court

19 Mo. 592

THE STATE, Respondent,

v.HAM, Appellant.

Supreme Court of Missouri.

March Term, 1854.

1. A reservation from sale, by the act of congress, of March 3, 1811, of land claimed before the board of commissioners, was not a disposition of the land, within the meaning of the first clause of the sixth section of the act of March 6, 1820, so as to prevent the same, when designated as a sixteenth section, from passing to the State for use of schools.

2. The act of March 6, 1820, the ordinance of July 19, 1820, declaring the assent of the people of Missouri to the conditions contained in said act, and the designation of a sixteenth section, vest in the state, for the use of schools, a complete title to land so designated, unless the title had previonsly passed out of the United States.

3. So, the title of the state, to land designated as a sixteenth section, is superior to a subsequent confirmation, by special act of congress, of a Spanish elaim, notice of which had been duly filed with the recorder of land titles; especially when the confirmation professes to be nothing more than a relinquishment of the title remaining in the United States.

Appeal from St. Francois Circuit Court.

The appellant was indicted in November, 1851, under the thirtieth section of the act entitled “an act to regulate the sale of the sixteenth sections,” (R. C. 1845, p. 994,) and the thirty-first section of the ninth article of the act concerning crimes and punishments, (R. C. 1845,) for trespassing upon section sixteen of congressional township thirty-four, range seven east, claimed as school land belonging to the inhabitants of said township. The indictment contained two counts. The first count charged the defendant with cutting down and destroying trees and crops. The second count charged him with cutting timber and quarrying rock. Plea, “not guilty.”

At the trial, the state offered in evidence a survey of the sixteenth section by the county surveyor, made in the cause by order of the court. It was proved that the defendant had cut timber on the land included in said survey, within the time laid in the indictment. No other survey of the sixteenth section was given in evidence.

The defendant, in justification, exhibited the following evidences of title in Thomas Fleming, whose tenant he was admitted to be:

1. A petition, dated Ste. Genevieve, October 15,1800, from Jean Bte. Valle, Francis Valle, St. Gemme Beauvais, and J. Bte. Pratte, to Don Carlos Dehault Delassus, lieutenant governor of Upper Louisiana, praying for a grant of two leagues square of land adjoining the Mine la Motte lead mine, owned and worked by them, to enable them to procure the timber and materials necessary to carry on the mine.

2. The reply of the lieutenant governor, dated January 22, 1801, stating that it was out of his power to make a grant of the extent praved for, referring the petitioners to the intendant general at New Orleans, and granting them temporary permission to cut wood on the land.

3. A power of attorney from the petitioners to Don Jacques Maxwell, dated March 9, 1802, to ask for a concession from the intendant general in their names.

4. A letter from Maxwell to the intendant general, dated New Orleans, April 29, 1802, asking a concession, as prayed for in petition to the lieutenant governor, upon which was endorsed the following order, signed by Morales, the intendant, and dated November 30, 1802: “Let the documents presented be accompanied by a translation thereof in the Castilian language, by the interpreter, Don Pedro Derbigny, and when this is done let the same be seen by the fiscal agent.”

5. Plat of a survey by Nathaniel Cook, deputy surveyor of the district of Ste. Genevieve, of 28,224 arpents, or 24,142 acres, including Mine la Motte, certified under date of February 22, 1806, as surveyed for J. Bte. and Francis Valle, Beauvais and Pratte, “by virtue of a concession granted them by Don Carlos Dehault Delassus, bearing date January 22, 1801.”

All the foregoing documents were filed in the office of the United States recorder of land titles, in February, 1806, by the Valles, Pratte and Beauvais, as the foundation of their claim to a confirmation.

6. Proceedings of the first board of commissioners upon the claim of J. B. & F. Valle, Pratte and Beauvais, for a confirmation of two leagues square at Mine la Motte. The board rejected the claim December 27, 1811.

7. An act of congress, approved May 24, 1828, entitled “An act confirming to Francis Valle, Jean Bte. Valle, Jean Bte. Pratte and St. James Beauvais, or to their heirs or legal representatives, of the county of Madison, in the state of Missouri, certain lands.”

8. Official survey No. 2963, of the Mine la Motte tract, confirmed by the act of May 24, 1828.

9. A patent pursuant to the act from the United States to the legal representatives of the original proprietors, for the land embraced in survey 2963, saving the rights of third parties, in the words of the act. The patent was dated March 25, 1839.

10. All the title of the patentees of the Mine la Motte tract was admitted to be in Thomas Fleming, and the sixteenth section upon which the trespass was committed, was admitted to be within the lines of survey No. 2963.

The court below, at the instance of the state, gave the following instructions, to which the defendant excepted:

1. The act of congress of March 6th, 1820, entitled “An act to authorize the people of the Missouri territory to form a constitution and state government, & c., taken in connection with an ordinance declaring the assent thereto of the people of the state of Missouri, by their representatives in convention assembled, passed on the 19th of July, 1820, operated as a grant by congress to the state of Missouri, for the use of schools, of the sixteenth section in controversy, unless such sixteenth section had been previously disposed of by government.

2. Although the land claimed by the proprietors of Mine la Motte, by the several acts of congress in that behalf, was reserved from sale by the government, and although the survey of said claim includes and covers the sixteenth section in controversy, yet such reservation is not such a disposition of said section by the government, within the saving clause of said act, and cannot operate to prevent the title vesting in the state, by virtue of said grant.

3. And if the jury believe from the evidence, that the defendant was cultivating any part of the section, as described in the indictment, or committed any waste or injury to the said land, within one year from the finding of the said indictment, they must find him guilty, and assess a fine not exceeding five hundred dollars.

The following, among other instructions asked by the defendant, was refused:

“If the jury believe that the defendant went into possession of the land in question, under a lease from Fleming, believing that Fleming had a good faith, then he was not a trespasser, subject to be indicted.”

The defendant was found guilty, and his fine assessed at four hundred dollars. He filed his motions for a new trial and in arrest of judgment, which being overruled, he appealed to this court. The cause was argued in this court at the October term, 1852, and an opinion filed at the March term, 1853. At the same term, a motion for a rehearing was filed, which was held under advisement until the March term, 1854, when the motion was overruled, and the opinion which is published was filed. the following abstract of points, made by the appellant's counsel, includes those made in the motion for a rehearing, as well as on the original argument.

Thomas T. Gantt, for appellant.

1. The ground embraced within the lines of the survey made by Cook, which was filed with the recorder as evidence of the extent of the claim of Valle and others before the old board, was by the acts of March 3, 1811, and February 17, 1818, reserved from sale or other disposition, until the final action of congress on the claim. This final action was had in May, 1828, when the land was granted to Valle and others. The title then granted had relation to March 3, 1811, and defeated all titles having inception in the interval. 2. The act of March 6, 1820, contained no words of present grant. Before a complete title could vest in the state, it was necessary at least that there should be a survey designating the sixteenth section, and the record does not show that any such survey has ever been made by the United States. While the title of the state was thus incomplete, a complete grant was made to the lessors of the appellant. Barry v. Gamble, 8 Mo. 88. 3. It is not questioned that congress had power to dispose of, by grant or otherwise, land which had been reserved by the acts of 1811 and 1818, but it is denied that they have, by the language of the act of March 6, 1820, manifested any intention to do so. An intention to grant land reserved to satisfy a private claim in open disregard of the reservation, and in violation of recognized right, ought not to be imputed to congress, unless such land clearly comes within the terms of the act, which it does not, because, 4. There was no authority by law for the survey by the surveyor general of the land claimed by Valle and others, by sectional and township lines. The first section of the act of congress of April 29, 1816, (2 U. S. S. at large p. 325,) directs that officer to survey the public lands, and also to survey the lands claimed by private claimants, and then or thereafter confirmed, and transmit plats to the commissioner of the general land office. The surveyor had no authority to survey private claims, whether confirmed or not, by township and sectional lines, and so there could be no legal designation of a sixteenth section within the survey made by Cook. The act of March 6, 1820, should only be taken to refer to a sixteenth section which has a legal existence. Besides this, the words “otherwise disposed of,” in the act itself are sufficient to protect...