The Act of Congress passed on the 13 of June, 1812, 2 Stat. 748,
entitled "An act for the settlement of land claims in Missouri"
confirmed the rights, titles, and claims to town or village lots,
outlots, common field lots, and commons in, adjoining, and
belonging to the several towns and villages therein named,
including St. Louis, which lots had been inhabited, cultivated, or
possessed prior to the 20th of December, 1803.
This confirmation was absolute, depending only upon the facts of
inhabitation, cultivation, or possession prior to the day named. It
was not necessary for the confirmee to have received from the
Spanish government a grant or survey or permission to cultivate the
land.
In 1824, Congress passed a supplementary act, 4 Stat. 65, making
it the duty of claimants of town and village lots to designate them
by proving before the recorder the fact of inhabitation, the
boundaries &c., and directing the recorder to issue
certificates thereof. But no forfeiture was imposed for
noncompliance, nor did the government, by that act, impair the
effect and operation of the act of 1812. Claimants may still
establish, by parol evidence, the facts of inhabitation &c.
In the act of 1812, the surveyor was directed to survey and mark
the outboundary lines of the towns or villages, so as to include
the outlots, common field lots, and commons. This was done. Whether
a claimant can recover land lying outside of this line, or whether
the evidence in this case is sufficient to establish the
plaintiffs' title, this Court does not now decide.
This was a petition in the nature of an ejectment brought by the
plaintiffs in error against Stoddard in the St. Louis Court of
Common Pleas. Stoddard, who was a citizen of Ohio, removed it into
the circuit court of the United States.
The ejectment was for the following lot of ground lying in the
City of St. Louis, namely, commencing at a point on the north side
of Laclede avenue, five feet fifty-three inches east from the
junction of Laclede and Leffingwell avenues, it being the south
east corner of block No. 24, in what is known as the "Stoddard
addition" to the City of St. Louis; runs thence north parallel to
Leffingwell avenue one hundred and seventy-two feet six inches to a
point; thence west along a line parallel to Laclede avenue one
hundred and twenty-five feet to a point; thence south along a line
parallel to Leffingwell avenue one hundred and seventy-two feet six
inches to the line of Laclede avenue; thence east along that line
one hundred and twenty-five feet to the beginning; it being part of
block No. 24, in what is known as the Stoddard addition to St.
Louis.
On the trial the jury, under the instructions of the court,
found a verdict for the defendant. The bill of exceptions explains
the whole nature of the case, and as it is short, it is here
inserted, as follows:
Page 57 U. S. 495
"Be it remembered that on the sixth day of May, 1853, came on
the above entitled cause to be tried, when the plaintiff introduced
the following parol evidence, to-wit: That from a period long prior
to the 20th December, 1803, to-wit, from 1785 or 1786, to the
period when the common fence fell down, which was six or seven
years before the change of government, Paul Guitard, who was then
an inhabitant of St. Louis, claimed and cultivated a piece of land
in what was then known as the 'Cul-de-sac' prairie, near St. Louis,
which land was one arpent wide in front on the east, and forty
arpens long towards the west. There were several persons who
cultivated lands in the 'Cul-de-sac' commencing on the south
extreme of the prairie; the first was Matard; then going north the
next was Guion; the next or third was Tabean; the fourth Joachim
Roy; the fifth Madame Vachard; the sixth Madame Dubriel; the
seventh Madame Verdon; the eighth Noise; the ninth Yosti; the tenth
LaRochella; the eleventh Madame Camp; the twelfth Paul Guitard. The
'Cul-de-sac' fields laid at the end of the St. Louis prairie, forty
arpent fields on the west, and they commenced about where Pratte
avenue now is. The 'Cul-de-sac' field of Madame Camp was the north
land of that part of what is called Chouteau mill tract, west from
the St. Louis prairie fields, and the north line of the Chouteau
mill tract was the north line of Madame Camp's Cul-de-sac field;
and the same line was the south line of Paul Guitard's Cul-de-sac
field. The 'Cul-de-sac,' which means 'end of a sac,' was formed by
the hills on each side north and south, and the hills on the west.
The lands cultivated there were called lands of the
'Cul-de-sac.'"
"There were other prairies near St. Louis, to-wit: the St. Louis
or Big Mound prairie, the Grand prairie, and Barrier des Noyer
prairie. In all of these, the lands were cultivated in strips by
different individuals, and they were all protected by the same
fence; there was but one fence, which commenced at the half moon
just north of the old Spanish town, ran thence west to a little
beyond Third Street, thence southwest to the fort a little south of
the courthouse, thence westwardly around the St. Louis and
Cul-de-sac fields, to the east line of the Barrier des Noyer
fields, thence south along that east line, and east around the St.
Louis commons to the river. This fence was a common fence, and was
kept up by those who cultivated the fields in the prairies, one
cultivator making and mending part, and another another part, under
the supervision and direction of a man who was called a syndic.
This fence kept the cattle and stock inside the commons and away
from the fields that were cultivated. The St. Louis prairie fields,
the Grand prairie fields, the Barrier des Noyer prairie fields, and
the Cul-de-sac prairie fields were all
Page 57 U. S. 496
worked at the same time, until the common fence fell down and
was neglected to be repaired, and Paul Guitard cultivated the land
lying adjoining and north of the said Chouteau mill tract until the
common fence fell down. His cultivation was towards the west on the
hill, and he did not cultivate the land on the very eastern end,
because it was rather low ground there. The cultivation of Guitard,
starting from the hill, went west towards the middle of the piece
of land; but how far it commenced from the eastern end, or how far
it extended towards the west, was not proved. It was called
Guitard's Cul-de-sac field from the west end of the St. Louis
prairie fields to the west end of the Chouteau mill tract, which
was the west line of the Cul-de-sac fields, now near the rock
spring. The land sued for was proved to fall within one arpen in
width, north of the Chouteau mill tract, and forty arpens in depth
or length west from the St. Louis prairie fields; but whether it
was a part of the very spot cultivated by Guitard was not proved.
The plaintiffs introduced a deed from Paul Guitard which conveyed
all his property and rights of property in St. Louis County, to his
grandson, Vincent Guitard, but this specific claim was not
mentioned; the deed was dated the 11th of January, 1822, and he
died in 1823. Vincent Guitard died in 1836, leaving but three
children, who are the plaintiffs and the sole representatives of
their father. Vincent Guitard never in any way disposed of this
land. Paul Guitard never had any concession for this land from the
Spanish authorities; he never presented any claim he had to it
under the act of 1812, to the recorder of land titles, nor made any
claim for it before any board of commissioners. His grandson
Vincent, nor none of the family, ever presented any claim to it
before the recorder of land titles, under the Act of the 26th of
May, 1824, nor was the land ever surveyed either by the Spanish or
American government, as a field lot. The defendant introduced a
confirmation and patent, by virtue of the Act of the 4th of July,
1836, to Mordecai Bell's representatives, and a survey of the
United States which included the land in controversy and a regular
chain of title to defendant. He also introduced map X, purporting
to contain the outboundary lines of the Surveyor General, at St.
Louis, projected under the first section of the Act of the 13th of
June, 1812, and it was proved that the land described in the
declaration, but not the whole forty arpens claimed by plaintiff,
lies within said outboundary lines. Plaintiff introduced an
experienced surveyor, who stated that in his opinion the
outboundary line, as projected on map X, was not correctly run
under the act of 1812; that said outboundary line should have been
run so as to include the outlots, common field lots, and commons,
in, adjoining, and belonging
Page 57 U. S. 497
to St. Louis, which he thought it did not do. It did not include
the Grand prairie fields or the Barrier des noyer fields, nor the
Cul-de-sac fields, either as they purport to be located on the
township plat of the township in which St. Louis lies, nor as
proved in this suit, except about one-third of their length as
proved on the eastern end, nor does it include all of the commons
of St. Louis; that in his opinion, an outboundary line run under
the act of 1812, so as to include the outlots, common field lots,
and commons of St. Louis, would necessarily include the outlots,
common field lots, in all the prairie fields as laid down on the
township plat and commons. And such survey would also necessarily
include land that was neither outlot, common field lot, nor
commons."
"
Agreement"
"It was agreed that in any court to which this action might be
carried, map X and township plat, above alluded to, might be
introduced and used without including them in this bill of
exceptions."
"It is also agreed that the property in dispute is worth more
than two thousand dollars, exclusive of costs. This was all the
evidence in the case, and thereupon the plaintiffs asked of the
court the following instructions, namely: "
"
Plaintiff's instructions."
" 1. The Act of Congress of 13 June, 1812, is in its terms a
grant, and confirms the right, title, and claim of all town lots or
village lots, outlots and common field lots, in, adjoining, and
belonging to such towns and villages as are mentioned in the act,
to those inhabitants of the towns and villages or to their legal
representatives who inhabited, cultivated, or possessed such lots,
rightfully claiming them prior to the 20th December, 1803. And the
principal deputy surveyor of the Territory of Missouri was required
by said act to run an outboundary of the towns and villages
mentioned in said act, so as to include the outlots, common field
lots, and commons thereto respectively belonging, which outboundary
line should be one continuous line, and not separate surveys of the
town and lots, and should include the outlots, common field lots,
and commons, and said towns and villages."
" 2. A common field lot, as intended by said act of Congress, is
a piece of land of larger or smaller dimensions, as the case may
be, according to ancient cultivation, lying alongside of, and
parallel to, other similar pieces of land, and claimed or
cultivated under the protection of a common fence by those who
inhabited said towns or villages prior to the 20th December, 1803;
and said pieces of land might not have been conceded or surveyed by
any French or Spanish authority, or surveyed officially by the
United States as a common field lot. "
Page 57 U. S. 498
" 3. If then the jury believe, from the evidence, that the land
sued for formed part of a common field lot, as just defined in
instruction 2, and that said common field lot was rightfully
claimed, and in part or altogether cultivated prior to the 20th
December, 1803, by Paul Guitard, the plaintiffs are entitled to
recover, which were refused, to which plaintiffs at the time
excepted, and defendant asked the following instructions: "
"
Defendant's instructions."
" 1. If the jury believe, from the evidence, that the
cultivation by Paul Guitard, testified to by the witnesses, was on
a tract of land called a Cul-de-sac common field, and if the jury
shall also believe, from the testimony, that the Cul-de-sac common
fields, including the one cultivated by Paul Guitard, were at a
place to the southwest from the premises sued for, and that neither
of said Cul-de-sac common fields include the premises in question,
then the plaintiff cannot recover in this action."
" 2. If the land sued for is within and forms a part of the
tract confirmed to Mordecai Bell, or his legal representatives, and
within the official survey of said Mordecai Bell tract, then the
defendant has shown a title in him paramount to the title of the
plaintiff, and the latter cannot recover."
" 3. There is no evidence that Paul Guitard, under whom the
plaintiff derives and claims title to the premises in question,
cultivated any outlot or common field lot, nor that anyone existed
at the place where the cultivation that has been spoken of by
plaintiffs' witnesses, existed, nor had the act of 1812 application
to this land, so far as Paul Guitard and those claiming under him
are concerned. The plaintiff, therefore, cannot recover in this
action."
" 4. If the outboundary line of the Town of St. Louis run under
the Act of Congress of 13 June, 1812, as shown by the official
survey and plat, marked X, read in evidence, includes the land in
controversy, then the plaintiff cannot recover. Which were given by
the court, and the court of its own motion gave the following:
"
"
Instruction by the court."
" The court also instructed the jury, that there having been no
concession nor grant, nor survey, nor permission to settle or
cultivate, or possess the land claimed by Paul Guitard, to said
Guitard, under and by the Spanish authorities or government, and no
location of said claim by or under said government, nor under the
French government, and no proof having been made at any time by
said Paul Guitard, or those claiming under him, or any
inhabitation, cultivation, or possession, or of the location and
extent of said claim, either under the provisions of the act of the
13th June, 1812, or those of the Act of the 26th May, 1824, either
before the recorder of
Page 57 U. S. 499
land titles or other United States authority; and there having
been no survey or location of said land by or under the authority
of the United States, the said plaintiffs cannot now set up said
claim and locate it, and prove its extent and inhabitation and
cultivation by parol evidence merely, and therefore cannot recover
in this action,"
"to which plaintiffs also excepted at the time, and here now
tender this their bill of exceptions, and pray that it be signed
and sealed and made part of the record in this cause, which is done
accordingly."
"R. W. WELLS [SEAL]"
Page 57 U. S. 507
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The plaintiffs claim a lot of ground in the City of St. Louis,
as representatives of Paul Guitard, an ancient inhabitant of that
city, under a confirmation in the Act of Congress of the 13th of
June, 1812, for the settlement of land claims in Missouri. 2 Stat.
748.
The record shows that Guitard, from 1785-1786 till the common
fence which surrounded and protected the field lots and commons of
that city was thrown down, in 1797 or 1798, claimed and cultivated
a parcel of land, one arpen in width and forty in depth, in the
Cul-de-sac prairie. The tract claimed was called Guitard's
Cul-de-sac field to its whole extent, and was in the usual form of
field lots in that village. His cultivation did not extend over the
whole claim, nor was it ascertained whether the portion sued for
was within that part cultivated. There were eleven other lots of
the same description, claimed and cultivated at that period by
different persons in the Cul-de-sac prairie lying together, that of
Guitard's being to the north of the others. The land sued for is
within the survey directed by the first section of the act referred
to. The defendant produced a patent from the United States for the
land in dispute, but as the case was determined upon the title of
the plaintiffs, that becomes of
Page 57 U. S. 508
no importance. The circuit court instructed the jury,
"That there having been no concession, nor grant, nor survey,
nor permission to cultivate or possess the land claimed by Paul
Guitard to said Guitard under and by the Spanish authorities or
government, and no location of said claim by or under said
government, nor under the French government, and no proof having
been made at any time by said Paul Guitard, or those claiming under
him, of any inhabitation, cultivation, or possession, or of the
location and extent of said claim, either under the provisions of
the act of 1812 or those of the Act of the 26th of May, 1824,
either before the recorder of land titles or other United States
authority, and there having been no survey or location of said
land, by or under the authority of the United States, the said
plaintiffs cannot now set up said claim and locate it, and prove
its extent and inhabitation and cultivation by parol evidence
merely."
This instruction comprehends the entire case, and the
examination of this will render it unnecessary to consider those
given or refused upon the motions of the parties to the suit.
The Act of 13 of June, 1812, declares
"That the rights, titles, claims to town or village lots,
outlots, common field lots, and commons in, adjoining, and
belonging to the several towns and villages named in the act,
including St. Louis, which lots have been inhabited, cultivated, or
possessed prior to the 20th of December, 1803, shall be and they
are hereby confirmed to the inhabitants of the respective towns or
villages aforesaid, according to their several right or rights in
common thereto."
This act has been repeatedly under the consideration of this
Court, and to ascertain what has been decided upon it will
facilitate the present inquiry. In
Chouteau v.
Eckhart, 2 How. 345, the defendant relied upon the
title of the Village of St. Charles to the
locus in quo,
as being a part of the commons of that village, and confirmed to it
by the Act of June, 1812. In that case, the right of the village
was established from a concession made by the lieutenant-governor
of Upper Louisiana, and a formal survey by the Spanish authority.
The judgment of this Court was that a title of this description was
confirmed by the act of 1812, and that this confirmation excluded a
Spanish concession of an earlier date, which had been confirmed by
a subsequent act of Congress.
In the case of
Mackay v.
Dillon, 4 How. 421, the defendant defended under
the claim of St. Louis to its commons, and produced evidence of a
Spanish concession, of a private survey which had been presented to
the board of commissioners, and of proof having been made before
the recorder of land titles. Whether the private survey made in
1806, and submitted to the
Page 57 U. S. 509
government, was conclusive of boundary, was the question before
the court. MR. JUSTICE CATRON, in delivering the opinion of the
Court, says,
"By the first section of the act of 1812 Congress confirmed the
claim to commons adjoining and belonging to St. Louis, with similar
claims made by other towns. But no extent or boundaries were given
to show what land was granted; nor is there anything in the act of
1812 from which a court of justice can legally declare that the
land, set forth in the survey and proved as commons by witnesses in
1806, is the precise land Congress granted: in other words, the act
did not adopt the evidence laid before the board for any purpose;
and the boundaries of claims thus confirmed were designedly, as we
suppose, left open to the settlement of the respective claimants by
litigation in courts of justice or otherwise."
Again in the case of
Les Bois v. Bramell, the same
learned judge says of this act,
"that this was a general confirmation of the common to the town
as a community, no one ever doubted, so far as the confirmation
operated on the lands of the United States."
The questions settled by this Court are that the act of 1812 is
a present operative grant of all the interest of the United States,
in the property comprised in the act, and that the right of the
grantee was not dependent upon the factum of a survey under the
Spanish government.
No question before this has been submitted to the court upon the
interpretation to be given to the "rights, titles, and claims"
which were the subject of the confirmation of the United
States.
The instruction given to the jury by the circuit court implies
that the confirmee, before he can acquire a standing in court, must
originally have had or must subsequently have placed upon his title
or claim an additional mark of a public authority besides this act
of Congress, that he must evince his right or claim by some
concession, survey, or permission to settle, cultivate, or possess,
or some recognition of his claim under the provisions of some act
of Congress by some officer of the executive department, indicative
of its location and extent. The laxity of the legislation in the
act of 1812 is painfully evident, when the fact is declared that
the large and growing cities of the State of Missouri have their
site upon the land comprehended in this confirmation. Nevertheless
an attempt to correct the mischief would probably create more
confusion and disorder than the act has produced.
The act, in the form in which it exists, was adopted by Congress
upon the solicitation and counsel of citizens of Missouri,
interested in the subject and well acquainted with the conditions
of its population. The towns and villages named in it
Page 57 U. S. 510
were then, and for many years continued to be, small, and the
property of no great importance. During this time, conflicting
rights and pretensions were adjusted, facts necessary to sustain
claims to property ascertained, and the business and intercourse of
the inhabitants accommodated to its conditions. The act itself,
with all the circumstances of the inhabitants before and at the
time of its passage, have formed the subject of legal judgments and
professional opinions upon which mighty interests have grown up and
now repose. This Court fully appreciates the danger of disturbing
those interests and of contradicting those opinions and
judgments.
The act of 1812 makes no requisition for a concession, survey,
permission to settle, cultivate, or possess, or of any location by
a public authority as the basis of the right, title, and claim,
upon which its confirmatory provisions operate. It may be very true
that there could have been originally no legitimate right or claim
without some such authority. Congress, however, in this act was not
dealing with written or formal evidences of right. Such claims in
Missouri have been provided for by other acts. These pretensions to
town and village lots formed a residuum of a mass of rights,
titles, and claims which Congress was advised could be equitably
and summarily disposed of by the abandonment of its own rights to
the property and a reference of the whole subject to the parties
concerned. Congress afforded no means of authenticating the rights,
titles, and claims of the several confirmees. No board was
appointed in the act to receive the evidence nor to adjust
contradictory pretensions.
No officer was appointed to survey or to locate any individual
right. All the facts requisite to sustain the confirmation -- what
were village or town lots, outlots, common field lots, or commons
-- what were the conditions of inhabitation, cultivation, or
possession, to bring the claimant within the act, were referred to
the judicial tribunals. The act has been most carefully and
patiently considered in the Supreme Court of Missouri, and
conclusions have been promulgated which comprehend nearly all the
questions which can arise upon it.
In
Vasseur v. Benton, 1 Mo., that court says,
"We are of opinion that the claims to town or village lots,
which had been inhabited, cultivated, or possessed, prior to the
20th of December, 1803, are by the express words of the act
ipso facto confirmed as to the right of the United
States."
In
Lajoye v. Primm, 3 Mo. 368, the court says,
"The great object of the act was to quiet the villages in their
titles to property so far as the government was concerned which had
been acquired in many instances by possession merely, under an
express or implied permission to settle and which had passed
from
Page 57 U. S. 511
hand to hand without any formal conveyance. In such cases,
possession was the only thing to which they could look, and taking
it for granted that those who were found in possession at the time
the country was ceded or who had been last in possession prior
thereto were the rightful owners -- the confirmation was intended
for their benefit."
In
Page v. Scheibel, 11 Mo. 167, the same court
says
"The whole history of the progress of settlements in the French
villages, so far as it has been developed in the cases which have
come up to this court, shows that the villagers did not venture to
take possession of the lots, either for cultivation or
inhabitation, without a formal permission of the
lieutenant-governor or the commandant of the post. These
permissions, it is also probable, were most generally in writing,
and accompanied by a survey made by an officer selected and
authorized by the government."
But the title of the claimants under this government does not
depend upon the existence or proof of any such documents. Congress
did not think proper to require it. In all probability, the fact
that possession, inhabitation, and cultivation could not exist
under the former government without such previous permission from
the authorities of that government was known to the framers of the
act of 1812, and constituted the prominent reason for dispensing
with any proof of this character in order to make out a title under
that act. However this may be, the act requires no such proof, but
confirms the title upon possession, inhabitation, or cultivation
alone, without regard to the legality of the origin of such
title.
We have quoted these portions of the reports of those cases to
express our concurrence in the conclusions they present.
We shall now inquire whether it was necessary for the confirmee
to present the evidence of his claim under the act of 1824, 4 Stat.
65, supplementary to the act of 1812.
This act makes it the duty of the claimants of town and village
lots
"to proceed, within eighteen months after the passage thereof,
to designate them by proving the fact of inhabitation &c., and
the boundaries and extent of each claim, so as to enable the
Surveyor General to distinguish the private from the vacant
lots."
No forfeiture was imposed for a noncompliance. The confirmee, by
a compliance, obtained a recognition of his boundaries from the
United States, and consequently evidence against every person
intruding, or claiming from the government
ex post facto.
The government did not by that act impair the effect and operation
of its act of 1812.
Under the act of 1812, each confirmee was compelled, whenever
his title was disputed, to adduce proof of the conditions upon
which the confirmation depended. As the facts of
Page 57 U. S. 512
inhabitation, possession, and cultivation at a designated period
are facts
in pais, it followed as a matter of course that
parol evidence is admissible to establish them. In the case of
Hickie v.
Starke, 1 Pet. 98, a question arose upon an act of
Congress which confirmed to "actual settlers" within a ceded
territory all the grants legally executed prior to a designated
day, and this Court held that the fact of "a settlement on that
day" must be established, and proof of occupancy and cultivation
was adduced. In
City of Mobile v.
Eslava, 16 Pet. 235, certain water lots were
confirmed to the proprietors of the front lots adjacent thereto,
who had improved them before the passage of the act of Congress,
and this Court sustained the title upon parol proof of location and
improvements. The Court said
"being proprietor of the front lot and having improved the water
lot opposite and east of Water Street, constitute the conditions on
which the right, if any, under the statute vests. In his charge to
the jury, the judge laid down these conditions in clear terms, and
instructed the jury, if the facts brought the defendant within
them, that they should find against the plaintiffs. The jury did so
find, and this is conclusive of the facts of the case."
The question of boundary under the act of 1812, as it was
decided in
Mackay v. Dillion, was left open to the
settlement of the respective claimants by litigation, in the courts
of justice, or otherwise. Nor has this Court, in any case, decided
that statutes, which operate to confirm an existing and recognized
claim or title with ascertained boundaries, or boundaries which
could be ascertained, are inoperative without a survey, or made one
necessary to the perfection of the title. A survey, approved by the
United States, and accepted by the confirmee, is always important
to the confirmee; for, as is said by the court in
Menard's Heirs v.
Massy, 8 How. 294, it is conclusive evidence as
against the United States, that the land granted by the
confirmation of Congress was the same described and bounded by the
survey, unless an appeal was taken by either party or an opposing
claimant to the commissioner of the land office. This consideration
depends upon the fact that the claimant and the United States were
parties to the selection of the land; for, as they agreed to the
survey, they are mutually bound and respectively estopped.
The cases of
Harrison v. Page, 16 Mo. 182;
Gamache
v. Piquignot, 17 Mo. 310, which has been affirmed at the
present session of this Court, and
Soulard v. Clarke, are
in harmony with the views we have expressed upon the latter branch
of the instructions of the circuit court.
We think it proper to state, that we express no opinion upon the
effect of the evidence to establish the plaintiff's title as a
subsisting title, and none upon the claim to such of the land as
lies
Page 57 U. S. 513
beyond the boundary line, settled by the survey of the United
States under the first section of the act of 1812.
The judgment of the circuit court is reversed and the cause
remanded.
Order
This cause came on to be heard on the transcript of the record,
from the Circuit Court of the United States for the District of
Missouri, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged, by this Court, that the judgment
of the said circuit court, in this cause, be, and the same is
hereby reversed, with costs, and that this cause be, and the same
is hereby remanded to the said circuit court with directions to
award a
venire facias de novo.
