Chouteau v. Eckhart
43 U.S. 344

Annotate this Case

U.S. Supreme Court

Chouteau v. Eckhart, 43 U.S. 2 How. 344 344 (1844)

Chouteau v. Eckhart

43 U.S. (2 How.) 344

ERROR TO THE SUPREME COURT

OF THE STATE OF MISSOURI

Syllabus

This Court has jurisdiction under the twenty-fifth section of the Judiciary Act in a Missouri land cause, where the title is not to be determined by Spanish laws alone, but where the construction of an act of Congress is involved to sustain the title.

The obligation of perfecting titles under Spanish concessions, which was assumed

Page 43 U. S. 345

by the United States in the Louisiana treaty, was a political obligation to be carried out by the legislative department of the government. Congress, in confirming or rejecting claims, acted as the successor of the intendant general, and both exercised in this respect a portion of sovereign power.

The Act of Congress passed on 13 June, 1812, confirming the titles and claims of certain towns and villages to village lots and commons, gave a title which is paramount to a title held under an old Spanish concession confirmed by Congress in 1836.

The facts were these:

On 11 January 1797, Charles Tayon presented the following petition:

"To Don Zenon Trudeau, Lieutenant Governor of the western part of Illinois, at St. Louis: "

"Charles Tayon, sub-lieutenant of infantry, pensioned by the King, captain of militia, commandant, under your orders, of the Village of St. Charles, of Missouri, has the honor to pray you to grant him a tract of timbered land of six arpens in width, fronting on the [marcies croche de la prairie basse] Crooked Swamp, in the low prairie, and extending to the Missouri, adjoining, on one side, to Mr. Ant. Janis, and on the other side, to lands not heretofore granted; favor which he expects of your justice."

"[Signed] CHARLES TAYON"

"St. Louis, 11 January, 1797"

On 23 January, Trudeau returned the following answer:

"St. Louis, January 23, 1797"

"Having been informed that the land asked for, in order to procure timber, is in no way fit to be improved, on account of the inundations to which it is subject every year, and that the timber thereon is only good to burn, and will renew itself in a short time, and therefore cannot be ruined, as the timber growing on the hills, which experience has shown will never grow up again; and the said land being in the vicinity of the Village of St. Charles and of various farms, in the prairie of its dependency, which would have to go a great deal further to procure wood; said tract shall remain (as well as all others adjoining, either in ascending or descending the Missouri, and which have been asked for by sundry petitions, addressed to us, together with the present, by Mr. Tayon) to the royal domain,

Page 43 U. S. 346

and for the common use of the said Village of St. Charles, and for the lands already granted in the prairies, or to be granted hereafter, all which Mr. Tayon shall make known to all the inhabitants, and especially to those who have asked for land, and whose petitions I herewith return."

"[Signed] ZENON TRUDEAU"

On 17 November, 1800, Pierre Chouteau applied for an augmentation of a previous concession as follows:

"To Don Carlos Dehault Delassus, lieutenant colonel attached to the stationary regiment of Louisiana, and lieutenant governor of the upper part of the same province: "

"Peter Chouteau, lieutenant of militia and commandant of the fort of Carondelet in the Osage nation, has the honor to represent to you that formerly he obtained of Don Manuel Perez, lieutenant governor of this part of Illinois, a concession for a tract of land of 10 arpens in front by as many in depth, to be taken on the left side of the Missouri at about 20 arpens above St. Charles, upon which concession your petitioner has made all preparatory works for the construction of a water grist mill, which was to be built on the creek comprised in his concession. The lieutenant governor, Don Zenon Trudeau, was pleased to grant to your petitioner an augmentation to the said tract of 30 arpens in depth, all which is proven by the authentic documents necessary to this object. The desire of profiting of the favor which the general government granted to all those who presented their titles to obtain their ratification caused your petitioner to address those same above-mentioned documents to a friend at New Orleans, to whom probably they have not been remitted, since he could not effectuate their presentation; the said original documents having not been registered in the archives of this government, your petitioner would be in great perplexity had he not to offer to you the attestation of Don Carlos Tayon, captain commanding the Village of St. Charles, of Missouri, who at that time had a perfect knowledge of the original documents here above-mentioned, by virtue of which your petitioner was authorized to begin an establishment for which he has made considerable sacrifice."

"Full of confidence in the justice and generosity of the government, he hopes that after the attestation you may be pleased to take from the commandant of St. Charles, you will have the goodness to ratify to him, and in the place, the security of a property which he has been enjoying for more than ten years by virtue of the titles to him

Page 43 U. S. 347

expedited by your predecessors, and of which he should wish that you would be pleased to order the surveyor of the Upper Louisiana to put him in possession in the following manner: to take two arpens below the creek comprised in his concession, and above said creek all the space which is between the said creek and the next plantation, by the depth of forty arpens, in order that, being possessed of the certificate of survey which shall be delivered to him, he may, if needed, have recourse to the superior authorities to obtain the ratification of the said title. The petitioner presumes to hope everything from your justice in the decision of the case which he has the honor to submit to your tribunal."

"PIERRE CHOUTEAU"

"St. Louis of Illinois, 17 November, 1800"

On 18 November, 1800, Delassus referred the matter to Tayon, who replied as follows:

"St. Louis of Illinois, 17 of November, 1800"

"Cognizance being taken of the foregoing statement, the sub-lieutenant in the royal army and captain of militia, commandant of the post of St. Charles, shall give, in continuation, information of all he knows upon what is here asked."

"DELASSUS"

"In compliance with the foregoing order, I do inform the lieutenant governor that the statement of Don Pierre Chouteau is in all conformable to truth, having had full knowledge of the titles mentioned by him in his petition, as well as of the considerable works he has done on said land, of which he has always been acknowledged as the proprietor."

"CHARLES TAYON"

"St. Louis, 25th November, 1800"

On the next day, 26 November, 1800, Delassus issued the following order:

"St. Louis of Illinois, 26 November, 1800"

"Having seen the foregoing information and the just rights stated by Don Pedro Chouteau, to whom an unexpected accident has deprived of his title of concession, and considering that he has been for a long time proprietor of the land in question, the surveyor of this Upper Louisiana, Don Antonia Soulard, shall put him in possession, in the manner solicited, of the tract of land he petitions for, and the survey being executed, he shall draw a plat of said survey, which he shall deliver to the interested party, to serve to the said party to obtain the title in form from the general intendency, to which tribunal alone

Page 43 U. S. 348

corresponds, by royal order, the distributing and granting all classes of lands of the royal domain."

"CARLOS DEHAULT DELASSUS"

On 18 January, 1801, the inhabitants of the Village of St. Charles had a meeting and adopted the following proceedings:

"In the year eighteen hundred and one, on 18 January, at the request of Mr. Louis Barrada, syndic for the fences of this parish, we, Charles Tayon, captain-commandant of the said St. Charles, have given notice at the door of this said church that all the inhabitants of this place should have to assemble this day in our government [house] in order to determine whether the commons at the lower end should be increased or not. The said inhabitants being then assembled and the question being under deliberation, they all unanimously agreed that for the interest of the said parish, the enclosed of the lands shall begin (acote) by the side of Mr. Antoine Lamarche, and it shall be continued in descending to the Crooked Swamp, all the way through the woods, to nearly opposite the house of the late Louis Hunault; thence it shall run in a straight line to the Missouri."

"The said inhabitants having thus determined on this head, it was agreed that the syndic on duty this year shall cause to be measured the quantity of arpens of land which are included in the new augmentation of the commons, in order to [separter] distribute to each inhabitant what he is to do with it according to the usages which have always been observed, without wronging anyone whosoever in the said distribution."

"It has been further agreed in the said assembly that if hereafter the commons of the upper end should need to be enlarged in order to procure more pasturage for the cattle, all the said inhabitants [s'y porterons] shall help in doing the same, as this day they bind themselves to do for the lower end, always without prejudice to anyone whosoever. And as the said inhabitants will not undertake anything without the consent of the lieutenant governor, they have judged proper that the present deliberation should be communicated to him, and that he be supplicated to preserve to the said inhabitants of St. Charles, of Missouri, their upper and lower commons, in their whole and entire state, and they will bind themselves to enclose the same as they have done heretofore, in order to preserve their grain and other property. "

Page 43 U. S. 349

"Done and agreed upon in our government [house], day and year as above. And all the said inhabitants have signed or made their customary marks."

On 26 February, 1801, Delassus made the following reply:

"St. Louis of Illinois, February 26, 1801"

"All concessions and augmentations of property must be granted by the intendant of these provinces, on a petition which is to be presented by those persons claiming lands, but if the commons of the inhabitants of St. Charles is not sufficient for their cultivation, we do permit them, provisionally, to enlarge the same according to their wishes without ensuring to them the right of property, which they are to apply for as above mentioned. And the provisional lines of the said augmentation shall be drawn by Captain Antoine Soulard, Surveyor of Upper Louisiana, who is the only person authorized to survey under our orders. It being well understood that nothing shall be done to the prejudice of any person."

"[Signed] CARLOS DEHAULT DELASSUS"

On 23 February, 1804, Delassus issued another order as follows:

"C. -- In consequence of the representation of the inhabitants of your post, which appears to me very just and well founded, after my decree of 26 February, in the year 1801, by which the augmentation therein mentioned is granted to them, and for which they have asked a survey by their petition of 27 April of the same year -- which petition you have kept to this day without making it known to me, for which I hold you responsible -- I apprise you that the surveys made in the said place cannot belong to any individual, but to the commons of St. Charles. Therefore you shall notify those who have had surveys made in the said place of this disposition, and you shall take the necessary measures for the execution of the whole survey asked for by the said petition of 27 April, according to the aforesaid decree of 26 February in the year 1801."

"May God have you in his holy keeping."

"[Signed in the original] CARLOS DEHAULT DELASSUS"

"Mr. Charles Tayon"

"St. Louis of Illinois, 23 February, 1804"

"I certify that the above is a copy of the original (official letter) addressed to Mr. Charles Tayon by the ex-commander-in-chief of

Page 43 U. S. 350

Upper Louisiana, Don Carlos Dehault Delassus, and presented to me by the citizens of note of the Village of St. Charles, while I was commandant of the said village."

"[Signed] JAMES MACKAY"

On 2 March, 1804, the surveyor general, Soulard, having made a survey and plat in conformity with the above order, issued the following certificate:

"I, Anthony Soulard, Surveyor General of Upper Louisiana, do hereby, certify, that a tract of land was surveyed, meted, and bounded for, and in presence of, the syndic and inhabitants of St. Charles [Missouri], with the assistance of many of the inhabitants of said village, such as is represented in the plan hereto annexed, according to their petition therefor, dated January 18, 1801, and the decree of the lieutenant governor, by which I am ordered to put them in possession of a sufficient quantity of land to serve them as a common; which surveys being completed, I find the said tract of land to contain 14,000 arpens, (superficial measure), the admeasurement being made with the perch of Paris, of 18 pies in length, also Paris measure according to the usages or customs of this country, which tract of land is situate on the left side of the Missouri River, at about twenty-one miles from the Town of St. Louis, bounded as follows, viz.: N.E., lands of the royal domain; S.E., the River Missouri; S.W., partly by land of St. James d'Eglise; N.W., by sundries, namely, Francis Duquette, the inhabitants of Marias Croche, lands at the Mamelles, lands of various proprietors, and lastly, by lands of Frs. Duguette, Joseph Tayon, John Tayon, and royal domain. This survey and admeasurement made without noticing the variation magnetic needle, which is (now) 7

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