Wright v. Gish

• Decision Date: 06 February 1888
• Citation: 6 S.W. 704,94 Mo. 110
• Parties: Wright, Appellant, v. Gish et al
• Court: Missouri Supreme Court

6 S.W. 704

94 Mo. 110

Wright, Appellant, v. Gish et al

Supreme Court of Missouri

February 6, 1888

October, 1887

Appeal from Livingston Circuit Court. -- L. H. Waters, Esq., Special Judge.

Affirmed.

L. A Chapman for appellant.

(1) Instruction numbered one, asked by the plaintiff and refused by the court, should have been given. Railroad v Lindell's Heirs, 39 Mo. 344; 1 Greenl. Evid., secs. 207, 208; Railroad v. Whitney, 27 N.W. 69, and cases cited. (2) Defendants had no title. The railroad company has shown clearly that it never had any title to the lands in suit, because no title could pass under the act of congress of June 10, 1852, and the act of the legislature of September 20, 1852, until plats or descriptive lists of the lands selected shall be filed with the secretary of state, and no map of the lands including these lands was filed in the office of the recorder of deeds therein. Railroad v. Lindell's Heirs, 39 Mo. 329; Baker v. Gee, 1 Wall. (U.S.) 333; Funk-houser v. Peck, 67 Mo. 33; Railroad v. Smith, 41 Mo. 310. (3) There is no evidence of title in the state of Missouri to the land in controversy. Railroad v. Smith, 41 Mo. 310; Funkhouser v. Peck, 67 Mo. 19; Railroad v. Lindell's Heirs, 39 Mo. 329. (4) The court erred in refusing to give for plaintiff instructions one and five. Thomas v. Railroad, 2 Copp Pub. Land Laws, 860; White v. Railroad, Ib., 876; Dalton v. Railroad, Ib., 861; Barbean v. Railroad, 9 Copp Land Owner, 81; Graham v. Railroad, Ib., 236.

Thos. E. Turney, Strong & Mosman and C. H. Mansur for respondents.

(1) The act of congress of June 10, 1852, was a grant, in praesenti, to the state of Missouri of every alternate section of land designated by even numbers, within six miles of the railroad on each side, in so far as complete title of such lands remained in the United States at the date of the act. Railroad v. Railroad, 97 U.S. 497; Railroad v. United States, 92 U.S. 733; Railroad v. Baldwin, 5 Am. & Eng. Ry. Cases, 408; Schulenberg v. Harriman, 21 Wall. 44; Railroad v. Smith, 9 Wall. 95; Whiting v. Morrison, 112 U.S. 693. (2) The act granted lands to be located, and the location in this case became fixed, when the route of the railroad was fixed, viz., June 10, 1853. Schulenberg case, supra, 60; Railroad v. United States, 92 U.S. 741; see also note to Grinnell v. Railroad, reported in 5 Am. & Eng. R. R. Cases, 451-2-3; Whiting v. Morrison, 112 U.S. 693; Lessieur v. Price, 12 Mo. 14; S. C., 12 How. (U.S.) 59. (3) It was not necessary, in order to vest the title in the state, that a list of the lands should be certified by the commissioner of the general land-office, under the act of congress, August 3, 1854. "A direct legislative grant of public lands is the highest muniment of title, and is not strengthened by a subsequent patent of the same land." Whiting v. Morrison, 112 U.S. 693; Lessieur v. Price, 12 How. (U.S.) 59; S. C., 12 Mo. 14. (4) The filing of plats or descriptive lists in the office of the secretary of state, or in the office of the recorder of deeds in Livingston county, was not necessary, in order that the title should vest in the railroad company under the act of congress of June 10, 1852, and the act of the Missouri legislature of September 28, 1852. Funkhouser v. Peck, 67 Mo. 35. (5) This land was not within any of the exceptions provided in the act of congress of June 10, 1852. (6) There is no estoppel in this case. The railroad company, in 1865, openly claimed the land, sold it, put its grantees in possession, and they have remained in the open possession of the land at the time of plaintiff's purchase in 1882, claiming to be owners under a title from the railroad company. Funkhouser v. Peck, 67 Mo. 33; Bates v. Perry, 51 Mo. 449; Austin v. Loring, 63 Mo. 19; Pilkington v. Ins. Co., 55 Mo. 172. (7) The patent offered by plaintiff cannot prevail against the prior legislative grant. Lessieur v. Price, supra; S. C., 12 How. (U.S.) 59.

Norton C. J. Judge Sherwood absent.

OPINION

Norton, C. J.

This suit is by ejectment to recover the possession of the following land situated in Livingston county, viz: The northeast quarter of the northeast quarter of section 28, township 58, range 22. Judgment was rendered for defendants, from which plaintiff has appealed, and assigns as the chief ground of error the action of the court in giving and refusing instructions.

Plaintiff, in support of his title, put in evidence a patent issued to him by the United States for the land in dispute, dated May 10, 1882. To overcome the right of plaintiff to recover on this patent, defendants rely upon two grounds: (1) that, by virtue of an act of congress of June 10, 1852, granting certain lands to the state to aid in the construction of certain railroads, the title to the land in question was vested in the state; (2) that, by virtue of an act of the legislature, approved September 20, 1852, the title of the state was vested in the defendant, Hannibal & St. Joseph Railroad Company. In support of this claim said acts were put in evidence, and it was further shown that one Elijah Harvey had, on the seventh of November, 1839, entered at the local land-office, at Milan, the east half of the northeast quarter of section 22, township 58, range 22; that the local land-officers, in posting said entry on the tract-book, by mistake marked the entry as having been made of the east half of the northeast quarter of section 28, township 58, range 22; that the mistake thus made being discovered at the general land-office, the commissioner thereof, on the tenth day of April, 1869, directed the local officers to correct the mistake on their books, and, on the eleventh day of April, 1877, the local officers were directed by the commissioner to restore the land to market, and add the land in suit to their list of lands for sale, and on the twenty-second of January, 1881, the land in suit was purchased by plaintiff, and the patent read in evidence was issued to him.

The evidence further showed that the route of the Hannibal & St. Joseph Railroad was located and fixed on the tenth of June, 1853, and the road was completed in 1859, and a map showing such location was filed in the general land-office in Washington, the distance from Hannibal to St. Joseph being two hundred and six miles. The state, under the grant to aid in its construction, was entitled to receive seven hundred and nine thousand acres, but only received, in consequence of prior grants and sales, six hundred and one thousand acres. While the evidence shows that other lands were selected in the place of lands lost within the six-mile limit, so far as it could be done under the terms of the grant, it does not show that any specified tract was selected in lieu of any particular tract of land so lost. It is also shown that the land in controversy was within two miles of the road as located. The evidence showed that the land in question was not included in the list of land approved by the secretary of the interior, or in the lists forwarded by the commissioner of the general land-office to the local land-officers, and from them certified to the railroad company, but that it was upon the list furnished to the land-officers of the company from which they made sales.

It further appears that the land-officers of the railroad company, in 1869, sold the land in dispute to one Findley who went into possession, and that, upon the cancellation of his purchase, in February, 1880, the land was sold by the company to defendant, Gish, who received a warranty deed therefor, in April, 1880, at which time the whole of said land was under fence and in cultivation. The circuit judge, on this state of facts, tried the case, as shown by the instructions, on the theory that the title to said land, when the Hannibal & St. Joseph Railroad was definitely located, passed to the state by virtue of the grant contained in the act of congress of 1852, and that, therefore, the plaintiff, though holding a patent issued in 18...