1. Where suit is brought in a state court by a town claiming
part of its common under the act of Congress passed in 1812, and
the defense is that there was a survey in pursuance of the federal
statute which estops the plaintiff to set up his claim, this Court
has jurisdiction to reexamine the case and reverse or affirm the
judgment.
2. The true construction of the act of 1812 is that it granted
to the inhabitants of the towns and villages therein named, and to
Carondelet among others, their lands used in common for pasturage,
but reserved the authority to define the limits of those common
lands by a survey.
3. A survey made by a Spanish officer under instructions from
the Spanish lieutenant governor, previous to 1800, which proceeded
no further than the running and marking of the northern line of the
common and did not ascertain the southern or western lines,
amounted to nothing.
4. Until a survey was made on the west and south, the villagers
had no title on which they could sue, because their grant attached
to no land, nor could a court of equity establish a boundary.
5. If no legal or binding survey was made of the Carondelet
common after the act of 1812, then the title remains to this day
what it was at the passage of the act -- a vague claim for six
thousand acres, without boundaries and incapable of being
judicially maintained.
6. But if a survey of all the lines was made in 1817 by a deputy
surveyor of the United States under instructions from the Surveyor
General, which was traced and remarked by another deputy in 1834,
this was a binding survey, though it did not follow the northern
line made by the Spanish officer.
7. It being established in the court below as matter of fact
that such survey was made and approved in 1817 and 1834 and that
the corporation of Carondelet had in various modes recognized,
accepted, and held under it, the state court was right in rejecting
the claim of the town for lands lying outside of it.
This proceeding was commenced by the City of Carondelet against
the City of Saint Louis in the Saint Louis Land Court
Page 66 U. S. 180
by a petition in which the plaintiff Carondelet set forth that
it was a Spanish town for more than thirty years prior to December
20, 1803, the date when that country was ceded to the United
States, and the inhabitants of the town for several years before
and after 1803 used and possessed a certain tract of land adjoining
the town as commons; that between the years 1796 and 1800, the
northern line of the Carondelet common was surveyed and marked by
Don Antonio Soulard, the Spanish surveyor for the province of Upper
Louisiana, pursuant to an order of the governor, which was
published at the church door of Saint Louis; that this line
commenced on the bluff bank of the Mississippi at the Sugar Loaf
Mound, four miles south of St. Louis and two miles north of
Carondelet, and running thence westwardly; that the line was
distinctly marked; that the land south of it continued to be used
as commons by the inhabitants of Carondelet until December 20,
1803, and was claimed by them as such until June 13, 1812, on which
day it was confirmed to them as their absolute property by an act
of Congress. The petition complains that Saint Louis, in fraud of
the rights of Carondelet, procured in 1831 a survey to be made of
the common lands of the former city, whose southern line is nearly
a mile south of the Sugar Loaf Mound, whereas it should have
followed the line established by the survey of Soulard and the
respective possessions of the parties in Spanish times. The
petition further avers that Saint Louis is in the actual possession
of the land covered by the two surveys, and prays judgment that the
survey of 1831, so far as it interferes with the claim of
Carondelet, be set aside and the plaintiff be put in
possession.
A verdict and judgment were rendered in the Land court in favor
of the defendant, and the cause was removed by writ of error to the
Supreme court of Missouri, where it was reversed and the record
remitted, with an order for a
venire facias de novo. On
the second trial, the verdict and judgment were again in favor of
the defendant, and another writ of error was taken to the supreme
court of the state, where the judgment was affirmed. A very full
report of the case as it stood in the state court will be found in
29 Mo. 527.
Page 66 U. S. 181
The Act of Congress of June 13, 1812, confirmed to the
inhabitants of certain towns and villages (among others, Saint
Louis and Carondelet) "the rights, titles, and claims to town or
village lots, out-lots, common-field lots, and commons in,
adjoining or belonging" to them, which were "inhabited, cultivated,
or possessed" prior to December 20, 1803, "according to their
several right or rights in common thereto." The same act made it
the duty of an officer to run an out-boundary line so as to include
the commons of each village. In 1816, Congress provided for a
survey of all claims confirmed by previous acts. Another act,
similar in its tenor and object, is dated in 1824, and in 1831 the
United States relinquished all their interest in these common lands
to the inhabitants of the respective towns and villages, to be held
by them in full property and for their own use, according to the
laws of Missouri.
Saint Louis was incorporated in 1809, and Carondelet in 1832,
both by the county court. The limits of Saint Louis were described
as extending southward to Sugar Loaf Mound. The bounds given to
Carondelet extended 2,640 yards on the Mississippi and west to
Fourth Street, but did not include the north common, or the fields,
or the south commons.
In 1816, or 1817, a survey was made by Elias Rector, a deputy
surveyor, under instructions from his superior, apparently in
pursuance of the law passed in 1816. In 1834, Joseph C. Brown,
another deputy, under similar instructions, retraced and marked the
survey of Rector. Brown's work was approved by the Surveyor
General. His survey ascertained and marked all the lines of the
common land appurtenant to Carondelet, and found its contents to be
9,905 acres, or about 11,642 arpents. The authorities of Carondelet
were present at the making of this survey by agents specially
appointed for that purpose. They procured a copy of it and directed
it to be framed for the benefit of the town. In 1839, they ordered
all the commons north of the River des Peres to be leased. The lots
on the extreme north were made fractional by Brown's line, and they
were leased as fractions. A plot of these subdivisions, filed by
themselves in the recorder's office, calls for the Saint Louis
common on the north. In several suits between
Page 66 U. S. 182
the town and other parties, Carondelet gave Brown's survey in
evidence as the basis of her title. When an attempt was made in the
War Department of the United States to annul the survey, Carondelet
protested and petitioned Congress to confirm their right according
to the survey. The City of Saint Louis in the meantime (1836)
proceeded to subdivide her common lands into lots down to the line
of Brown's survey and sold them, but not without a formal notice
from a committee appointed by Carondelet that the lands were
claimed by the latter corporation. This suit was brought in
1855.
The Supreme Court of Missouri held that the evidence given in
the Land court proved the acceptance of Brown's survey by the
authorities of Carondelet; that it could not be accepted in part
and rejected in part, and that such acceptance estopped Carondelet
from claiming any land outside of the survey.
Page 66 U. S. 187
MR. JUSTICE CATRON.
This cause is brought here by writ of error to the final
decision of the Supreme Court of Missouri. The proceeding in the
court below was according to the state practice, being by petition
partly in the nature of a common law action and also corresponding
in other parts to a bill in equity. One issue was presented by the
pleadings which was submitted to a jury. The petition states that
between the years 1796 and 1800, the northern line of the
Carondelet common was surveyed and marked by Soulard, the proper
Spanish surveyor for Upper Louisiana, pursuant to an order made by
the lieutenant governor of the province; that the line was run and
duly marked in presence of certain of the inhabitants of St. Louis
and Carondelet and published at the church door. It commenced at
the bluff bank of the Mississippi River at a mound called the Sugar
Loaf, about four miles south of St. Louis, and two miles north of
Carondelet, and run westwardly to the northeast corner of the
common fields of Carondelet; that monuments were established at
each and of the line, and a temporary fence was made of brushwood
along the same, and that the inhabitants of Carondelet held and
occupied as their northern boundary of the common up to said line
from 1796 until December 20, 1803, and continued to claim to said
line to the time of passing the Act of June 13, 1812, by which act
it is averred the petitioners took an absolute and fee simple title
to the land bounded on the north by Soulard's line. This is the
legal title set up, and a recovery of possession is claimed to that
line.
The equity asked to be enforced against St. Louis is that in
1831, the Surveyor General of Missouri and Illinois caused a survey
to be made of the supposed commons of St. Louis, locating the
southern boundary of the St. Louis common about one mile south of
the Sugar Loaf, and of Soulard's line above described; that to this
line St. Louis claims title and holds
Page 66 U. S. 188
possession as part of its common, and which survey is declared
to be in fraud of the rights of the inhabitants of Carondelet, and
throws a cloud over their title as confirmed by the act of 1812,
and they pray to have it set aside and held for naught because it
was made by the Surveyor General without any warrant or authority
of law. Defense was made under the general issue.
A question has been raised whether this Court has jurisdiction
to reexamine the decision of the Supreme court of Missouri.
The 25th section of the judiciary act provides that where there
is drawn in question the construction of any statute of the United
States and the decision is against the title set up and claimed
under the statute, the case may be reexamined in this Court and the
decision reversed or affirmed.
Here, title was set up and claimed by Carondelet to a part of
its common according to a true construction of the act of 1812. The
claim depends solely on this act of Congress, taken in connection
with Soulard's survey, and the decision being adverse to the claim,
jurisdiction exists.
Soulard run a single short line from the mound to the east side
of the common fields, and did nothing further. He may have obtruded
on the claim of common appertaining to St. Louis, and so the
department of public lands must have adjudged, as a different line
was adopted. At that early day, the land was of too little value to
attract attention to this proceeding.
The act of 1812 granted to the inhabitants at the place known as
Carondelet their lands used in common for the pasturage. But the
power was reserved by Congress to the Executive authority to survey
this common property by including it in an outboundary survey,
reserving from the common property such portion as the government
saw proper to withhold for military purposes, which was done.
A tract of some nine thousand acres was claimed by this hamlet
of people lying south of the village as commune property, with a
comparatively small exception. The southern portion was wholly
undefined; it was in the condition of Cere's
Page 66 U. S. 189
claim, investigated by this Court in the case of
Minard's
Heirs v. Massey.
Had the outboundary line been run according to the reserved
power in the act of 1812, the boundary of the common would have
been established, there being no other claims to be included. Until
a survey was made on the west and south, the villagers had no title
to the common on which they could sue, because their grant attached
to no land, nor could a court of equity establish a boundary. This
Court so held in the case of
West v.
Cochran, 17 How. 416. The case is different under
the act of 1812 as to town lots and out-lots, as there stated. Such
lots and the possession of them could be shown and identified as
matter of evidence.
Ib., 58 U. S. 416.
The proposition is, of necessity, true as respects all grants of
specific tracts of land. If there be no boundary, the grant is
vague, and cannot be identified, and the grantee takes nothing. The
survey here was the completion of the title, although it succeeded
the act of granting the land. It defined the grant.
In opposition to this doctrine, it is insisted that by the act
of 1812, a title in fee was taken, and that no public survey was
necessary to give title. Such is the established doctrine of this
Court, as will be seen by the case of
Chouteau v. Eckhart
and
Bissell v. Penrose.
The first of these cases involved the St. Charles common; it had
been officially and carefully surveyed, and the boundaries marked
by Soulard, the Spanish surveyor.
43 U. S. 2 How.
350. No question of boundary was involved in the controversy, and
in the case of
Bissell v.
Penrose, 8 How. 317, there had been a private
survey, which was filed with the board of commissioners as
descriptive of the land claimed and which was held to have been
reserved from location by a New Madrid certificate. It is, however,
conceded in the opinion of the Court and in Mr. justice McLean's
dissenting opinion, that if no marked boundary had existed, the
confirmation would have been vague and the opposing entry
valid.
This being the condition of the Carondelet common south of the
village, a survey and line marks entered into the title, and were
necessary to create one; as to the survey, the land
Page 66 U. S. 190
granted must attach. To this end, Elias Rector, a deputy
surveyor, in 1816 or 1817, under instructions from the Surveyor
General at St. Louis, made a survey of the Carondelet common,
fixing the upper corner at the west bank of the Mississippi River,
about a mile below and south of the Sugar Loaf Mound, thence
running westwardly to the common fields, southwardly with them so
far as they extended, and then completed his survey below the
village and fields. On the west and south, the lines adjoined
public lands, and on the east the tract was bounded by the
Mississippi River. It has many lines and corners. The public lands
and private claims lying north, west, and south of Rector's survey
had to be connected with it for the purpose of ascertaining the
fractions in the townships lying adjoining, and for this purpose
the Surveyor General in 1834 ordered Joseph C. Brown, a deputy, to
trace and remark the lines of Rector's survey and connect them with
the public lands and private claims. This was carefully done; the
line marks of Rector's survey were found, and it was remarked.
Under Rector's survey, thus identified by Brown's resurvey,
Carondelet has claimed title, and now holds in fee a very large
portion of its common lands. Its contestation has been as vigorous
to uphold Rector's survey on the south as it has been to overthrow
it on the north. It must be admitted that if when Rector was sent
into the field to survey the village common, he had reported to the
Surveyor General that after beginning at a certain point on the
river, he had run a mile west and made a second corner at the
fields, and there broke his compass, and did nothing more, that
such a survey and return would have amounted to nothing. And this
is all that Soulard did, acting under similar general instructions
from the Spanish lieutenant governor with those given to Rector by
the Surveyor General. Both were directed to survey the common and
make due return of their work. No instructions were given where
either should begin or how he should proceed afterwards. The
correctness of the survey was to be ascertained and the work
approved by higher authority.
It is objected that the field notes of Rector's survey were not
platted or recorded, and were found in an obscure box in
Page 66 U. S. 191
the Surveyor General's office, and that in fact there never was
an approved survey. Wm. Milburn, who was a clerk in the office as
early as 1817 and had been Surveyor General, proves this objection
to be groundless. But suppose it was true -- then how does the
title of the plaintiffs stand? Soulard never made a survey that any
authority did or could recognize as one of the common; if Rector's
be a fiction and Brown's re-marking equally void with the survey he
traced, then the Carondelet common has no boundary on the north,
west, or south, and stands as the village title did when the act of
1812 was passed, which was a vague claim set up by the villagers
for 6,000 acres before the board of commissioners, and to which
quantity Mr. Secretary Steuart ordered them to be held, but gave no
directions how the land should be laid off; and the matter having
been brought to the consideration of Secretary McClelland, he
adjudged, and properly, that Rector's survey and Brown's remarking
of it concluded the government and bound the corporation of
Carondelet to the whole extent of the survey.
This proceeding having the features of a suit in equity and also
of an action at law to ascertain the better title in one action,
and the defendant, having relied on the general issue to sustain
the defense, offered Rector's survey in evidence, to prove the
bounds of the land granted by the act of 1812. It was established
as matter of fact that the survey had been made and the field notes
duly returned, and that Brown re-marked the lines 1834. It also
appeared, as matter of fact and of law, from the records of the
General Land Office, by the decisions of the officers there, that
the department administering the public lands had settled the
question in regard to the regularity of Rector's survey, its due
return, and approval. And the jury having found that the
corporation of Carondelet had, in various modes, recognized,
accepted, and held under Rector's survey, as identified by Brown in
1834, we are of opinion that the state court properly rejected the
claim set up by the petition and order the judgment below to be
affirmed.
Judgment of the Supreme court of Missouri affirmed.
