Les Bois v. Bramwell
45 U.S. 449 (1846)

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U.S. Supreme Court

Les Bois v. Bramwell, 45 U.S. 4 How. 449 449 (1846)

Les Bois v. Bramwell

45 U.S. (4 How.) 449

Syllabus

A private survey of land, claimed under an old Spanish concession and presented to the board of commissioners appointed under the act of 1805, is not conclusive against the party presenting it to show the boundaries of the claim, but is proper evidence to go to the jury, who are to decide upon its limits.

Under the acts of 1824, 1826, and 1828, the District Court of Missouri was authorized to receive petitions of claimants to land, until 26 May, 1829. In 1831, when claims which had not been presented were standing under a bar, Congress confirmed the title of the inhabitants of the Town of St. Louis to the

adjacent commons. This act was valid, unless the opposing claimant then possessed a vested interest which was protected by the Louisiana treaty.

By the third article of that treaty, the inhabitants were to be protected in their property.

But land held under a concession and survey was not finally severed from the royal domain and converted into private property.

The power of granting the public domain was in Morales, who resided in New Or1eans. His regulations were in force in Upper Louisiana, and by them the title to land held under a concession and survey was not perfected until ratified by him and a final grant issued.

This power was in a great degree a political power, and, by the treaty, the United States assumed the same exclusive right to deal with the title, in its political and sovereign capacity. The courts of justice cannot, without legislation, execute the power, because the holder of an incomplete title has no standing in court.

A confirmatory act passed by Congress in 1836 does not reach back to the original concession and exclude grants of the same land made in the intermediate time, either by Congress itself or a board of commissioners or the district court acting under its authority.

In the act of 1836, Congress had in view the situation of persons whose titles were, by that act, confirmed to lands which had been previously granted to others, and, in order to meet the case, provided that such confirmed claimants might take up, elsewhere, an amount of public land equal to that which they lost.

The confirmatory act of 1836 must therefore be construed to exclude the commons which had been granted by previous acts to the Town of St. Louis.

These acts, and a survey by the proper public officer in 1832, placed the title of the town in the same condition as if a patent had been issued.

This case was exactly the same, in most of its points, with the case of Mackay v. Dillon, reported in a preceding part of this volume. Reference will be made to that case in all the points which are similar.

It was an action of ejectment brought by Les Bois in the circuit court to recover two hundred and forty-four arpents and fifty perches of land claimed under a Spanish concession. The defendant Bramell claimed title under the acts of Congress of 1812 and 1831 granting a right of common to the Town of St. Louis.

The plaintiff's title was as follows.

1. A petition, concession, and survey.

2. Proceedings of the board of commissioners established by the Act of Congress passed 2 March, 1805.

Page 45 U. S. 450

3. Proceedings of the board of commissioners established by the Acts of July 9, 1832, and March 2, 1833.

4. The Act of Congress passed 4 July, 1836.

5. A certificate of the surveyor of the public lands dated September 6, 1838.

These will be taken up in order.

1. A petition, concession, and survey.

The petition was as follows:

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

"Marie Nicolle Les Bois has the honor of representing to you that, having lost her father and mother since her most tender years, in consequence of a well known disaster, which alone would be sufficient to render her situation interesting to all men of feelings, and having had for support since that moment an uncle and aunt, both respectable, who have taken care of her infancy, considering that time in his flight deprives her every day of some one of her protectors; that her brothers and sisters are all married, and loaded with family, and without fortune; that she remains as an isolated being who cannot expect any assistance of anyone whomsoever, and who, without fortune, finds herself under several points of view in a calamitous situation which appears to her to be worthy to attract the attention of the good heart everybody knows you possess. Full of this idea and convinced of the generosity of the government, which has never ceased to grant favors to the unfortunate and to be particularly the protector of orphans, she hopes you will be pleased to grant to her the concession of a tract of land situated to the south of this town, and being vacant lands of His Majesty's domain, and which may contain two hundred and thirteen arpents in superficie, more or less, which land shall be bounded as follows: to the north, south, and west, by the vacant lands of the domain, and to the east by a concession of some width belonging to Mr. Antonio Soulard."

"Such is the statement of my misfortune and pretensions, and I presume to hope this favor of the generosity of a benevolent and generous government, and of a chief as worthy as you are to fulfill its benevolent intentions."

"MARIE NICOLLE LES BOIS"

"St. Louis, May 10, 1803"

The concession was as follows:

"St. Louis of Illinois, May 11, 1803"

"Having seen the foregoing statement, I do grant to Marie Nicolle Les Bois, for her and her heirs, the land which she solicits, in case it is not prejudicial to any person, and the surveyor of this

Page 45 U. S. 451

Upper Louisiana, Don Antonio Soulard, shall put the petitioner in possession of the quantity of land she solicits in the place designated, which, when executed, he shall draw out a plat of survey, delivering the same to the party, with his certificate, in order to serve to her to obtain the concession and title in form from the intendant general, to whom alone corresponds, by royal order, the distributing and granting of all classes of lands of the royal domain."

"CARLOS DEHAULT DELASSUS"

"Of Survey -- Upper Louisiana, District of Sn. Luis de Illinois"

"The survey was as follows:"

"Note. The bounds set to all corners are shown on the plat."

"All the line trees were marked with one blaze above two notches. The trees on both sides of the lines were blazed only."

"Registered in book B, of the surveys for said district, folio 17, No. 20."

"Of Certificate of Survey"

"Don Antonio Soulard, Surveyor General of Upper Louisiana -- I do certify that I have measured, run the lines, and bounded, in favor of Marie Nicolle Les Bois, a piece of land of two hundred and forty-four arpents and fifty perches in superficie, measured with the perch of the City of Paris, of eighteen French feet in length, lineal measure of the said city, according to the agrarian measure of this province, which land is situated at about the distance of twenty-five arpents to the southwest of this Town of Saint Louis, and is bounded to the north-northwest by lands of Don Santiago Mackay; to the east-southeast by lands belonging to me; to the south-southwest in part by lands of Don Jh. Brazeau, and by vacant lands of the royal domain, and by the west-southwest by vacant lands; which measurement and survey I took without regarding the variation of the needle, which is 70�30' east, as is evident by the foregoing figurative plat, on which are noted the dimensions, directions of the lines and limits, and other boundaries &c."

"Said survey was executed by virtue of the memorial and decree of the lieutenant governor and subdelegate of the royal fisc, Don Carlos Dehault Delassus, dated 11 May, 1803."

"In testimony whereof I do give the present, with the preceding figurative plat, executed by my exertions on 27 May of the current year in St. Louis, August 20, 1803."

"ANTONIO SOULARD, Surveyor General"

"Truly translated, St. Louis, December 15, 1832."

"JULIUS DE MUN"

Page 45 U. S. 452

2. Proceedings of the board of commissioners established by the Act of Congress passed on 2 March, 1805.

"Proceedings of commissioners"

"Friday, October 7, 1808"

"Board met. Present: The Honorable Clement B. Penrose and Frederick Bates."

"Marie Nicolle Les Bois, claiming two hundred and forty-four and one-half arpents of land situated in the commons of St. Louis, produces to the board a concession from Don Charles Dehault Delassus, lieutenant governor for the same, dated May 11, 1803; a plat and certificate of survey, dated 27 May, 1803, and certified 20 August, same year."

"Laid over for decision; board adjourned."

"CLEMENT B. PENROSE"

"FREDERICK BATES"

"Wednesday, August 21, 1811"

"Board met. Present: Clement B. Penrose and Frederick Bates, commissioners."

"Marie Nicolle Les Bois, claiming two hundred and forty-four and one-half arpents of land, see book No. 3, 282. It is the opinion of this board that this claim ought not to be confirmed."

"Board adjourned until to-morrow, eight o'clock, A. M."

"CLEMENT B. PENROSE"

"FREDERICK BATES"

3. Proceedings of the board of commissioners, established by the acts of July 9, 1832, and March 2, 1833.

"Thursday, November 39, 1832"

"Board met pursuant to adjournment. Present: Lewis F. Linn [and] F. R. Conway, commissioners."

"Marie Nicolle Les Bois, by her legal representatives, claiming two hundred and forty-four and a half arpents of land, see book C, 73, 74, and 75, No. 3, 282, No. 5, 328, produces a paper purporting to be an original concession for two hundred and thirteen arpents of land, more or less, from Charles Dehault Delassus, dated 11 May, 1803; also a paper purporting to be a plat and certificate of survey for two hundred and forty-four arpents and fifty perches, taken 27 May, and certified 20 August, 1803, by Antonio Soulard."

"M. P. Leduc, duly sworn, saith, that the signature to said concession is in the proper handwriting of the said Charles D. Delassus, and the signature to said certificate of survey is in the proper handwriting of said Soulard."

"The board adjourned until to-morrow at ten o'clock, A. M."

"L. F. LINN"

"F. R. CONWAY"

Page 45 U. S. 453

"No. 39"

"Tuesday, November 5, 1833"

"The board met pursuant to adjournment. Present: L. F. Linn, A. G. Harrison, F. R. Conway, commissioners."

"Marie Nicolle Les Bois, claiming two hundred and forty-four and a half arpents of land, see 64 and 65 of this book (No. 6). The board are unanimously of opinion that this claim ought to be confirmed to the said Marie Nicolle Les Bois, or her legal representatives, according to the concession."

"The board adjourned until tomorrow at nine o'clock, A.M."

"L. F. LINN"

"F. R. CONWAY"

"A. G. HARRISON"

4. The act of Congress passed 4 July, 1836.

The purport of this act is set forth, under the eighth head of the plaintiff's title in the case of Mackay v. Dillon.

5. A certificate of the surveyor of the public lands dated September, 6, 1838.

This certificate is as follows:

"Plat and Certificate of Survey, by Authority of the United States"

"Survey No. 3,184"

"Plat and description of the survey of a tract of two hundred and four arpents and fifty perches, equal to two hundred and eight acres of land, situated in township forty-five, north of the base line, range seven, east of the fifth principal meridian, in the State of Missouri, executed on the twenty-fifth day of September, eighteen hundred and thirty-eight, by Charles De Ward, deputy surveyor, under instructions from the Surveyor of the Public Lands in the States of Illinois and Missouri, dated the sixth day of September, eighteen hundred and thirty-eight."

"This being the tract of land granted, on the eleventh day of May, eighteen hundred and three, to Marie Nicolle Les Bois, by Charles Dehault Delassus, then lieutenant governor, for the government of Spain, of the Province of Upper Louisiana, surveyed on the twenty-seventh day of May, eighteen hundred and three, by Antoine Soulard, Spanish surveyor of the same province, and confirmed to the said Marie Nicolle Les Bois, or her legal representatives, by the Act of Congress of the United States, approved the fourth of July, eighteen hundred and thirty-six, entitled 'An act confirming claims to land in the State of Missouri, and for other purposes,' according to the decision, numbered thirty-nine, of the report of the board of commissioners appointed by the act of Congress, approved the ninth of July, eighteen hundred and thirty-two, entitled 'An act for the final adjustment of private

Page 45 U. S. 454

land claims in Missouri', and the act of Congress, approved the second of March, eighteen hundred and thirty-three, supplemental thereto."

Then follows a minute description of the land by metes and bounds.

"Defendant's Title"

The evidence offered by the defendant consisted of the first six heads of the title offered by the defendant, in the case of Mackay v. Dillon.

He further offered a plat and survey of the common, made in November, 1832, under instructions from the Surveyor of Public Lands in the States of Illinois and Missouri, and the following certificate:

"SURVEYOR'S OFFICE, St. Louis, 7 April, 1841"

"The foregoing plat and description of the survey of the commons of St. Louis are correctly copied from 74, 75, and 76 of record book C in this office. The plat of the survey, No. 3,184, subsequently made of the claim of Marie Nicolle Les Bois, within the survey of said commons, is this day laid down on the said foregoing plat of the common, according to the survey of the said claim of Marie Nicolle Les Bois."

"WILLIAM MILBURN"

"Surveyor of the Public Lands in the States"

"of Illinois and Missouri"

The evidence being closed on both sides, the counsel filed the following agreement.

"Agreement by Parties"

"It was agreed by the parties that at the time of the commencement of this suit, the defendant was in the actual possession and occupation of twenty acres of land, parcel of the tract of land in the declaration mentioned, as tenant of the City of St. Louis, claiming the same as common belonging to the inhabitants of St. Louis, and further that the matter of dispute in this action exceeds the value of two thousand dollars, exclusive of costs."

"It was also admitted by the parties that from a short time after the settlement of the Village of St. Louis, there was a fence, commencing above the Town of St. Louis, running westwardly, a little west of the village, until it came to the hill near the courthouse, and then ran in a direction south of west until it reached the line of the Barriere des Noyer fields, and then running southwardly along the front of those fields until it reached the Carondelet fields, and from that point extended to the river. The land on the eastern side of that fence was used by the inhabitants of the town for the pasturage of cattle and for the supply of wood, and was always

Page 45 U. S. 455

called the common of the town, while the land on the western side was used for cultivation. The land in question lies on the eastern side of this fence, and within what was called the common. The fence above mentioned was destroyed in the year 1797, at which time the cultivation of the common fields west of said fence was discontinued."

The counsel for the plaintiff then moved the court to instruct the jury that the survey offered by the inhabitants of St. Louis, in support of their claim, upon which survey was laid down, at the request of the claimants, the concession and survey of Marie Nicolle Les Bois, excludes and protects from the confirmatory operation of the Acts of Congress of 13 June, 1812, and Act of Congress of 27 June, 1831, the title of said Marie Nicolle Les Bois to the tract granted to her.

Which instruction the court refused to give; to which decision the plaintiff, by her counsel, excepted.

"Instructions given"

"The court then instructed the jury as follows:"

"1. That the inhabitants of the Town of St. Louis were confirmed in their claim to commons by the acts of Congress of 1812 and 1831."

"2. That the notice of claim of said inhabitants, as filed with the recorder of land titles, and exhibited before the board of commissioners, read here to the jury, is evidence of the extent of the said claim to said commons."

"3. If the claim of the plaintiff is included within the boundary of the lands confirmed to the Town of St. Louis by the acts of 1812 and 1831, then the jury must find for the defendant; because those acts passed the title to the land in controversy to the inhabitants of said town."

"To which opinion of the court, in giving the said instructions, the plaintiff, by her counsel, excepted. And the plaintiff prays the court to sign and seal this bill of exceptions, which is done accordingly, this 14 April, 1841."

"J. CATRON [SEAL]"

"R. W. WELLS [SEAL]"

Under these instructions, the jury found for the defendant, and to review them the present writ of error was brought.

Page 45 U. S. 456

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