1. The Act of Congress passed June 13, 1812, confirming to the
inhabitants of St. Louis and other villages the lots, out-lots,
common fields, &c., occupied and cultivated by them before 1803
is a present operative grant of all the interest which the United
States had in the land mentioned in the act.
2. As no act of the Surveyor General was necessary to make the
grant valid, so nothing that he did could defeat it.
3. A map made by the Surveyor General in 1840, exhibiting the
outboundary lines of St. Louis common, is not binding on one who
claims under a villager.
4. A title confirmed by the act of 1812 is a good title though
the land be not within the outboundaries laid down in the Surveyor
General's map.
This action was commenced in the St. Louis Land Court by William
Milburn, William Glasgow, Jr., and William C. Taylor, against Jean
Baptiste Hortiz. The petition of the plaintiff set forth that they
are commissioners appointed under a law of the state, and as such
entitled to the possession of the land described as section
sixteen, township forty-five north, range seven east, and the
defendants have taken and unlawfully hold about ten acres thereof,
for which suit is brought. The defendant answered, admitting his
possession of a tract containing 4 22/100 arpents, and denied the
plaintiff's right of possession.
On the trial, the plaintiffs showed their appointment as
commissioners, and their right under the law of Missouri to
possession of the sixteenth section. The defendant admitted that
the land he was on was part of the sixteenth section, but showed
that he held it by a title from Francois Bequette, who had occupied
and cultivated it, claiming it to be his own prior to December 20,
1803, and that it is situated in the vicinity of the ancient
village of St. Louis, of which Bequette was an inhabitant.
Page 66 U. S. 596
The defendant asserted that those facts, coupled with the act of
Congress passed in 1812, confirming to the inhabitants of St. Louis
and other villages such out-lots, common field lots, and commons as
were inhabited, cultivated, or possessed by them previous to
December 20, 1803, gave him a legal title to the land in dispute.
To this the plaintiffs replied that a survey of the St. Louis
commons, out-lots &c., was made by the Surveyor General in
1840. He exhibited the map of that survey, and showed that the land
occupied by the defendant was not within the out-boundaries there
laid down.
The court refused to instruct the jury that the survey was
binding upon all parties claiming under the confirmation of 1812,
but charged that if the land in dispute was one of a series of lots
lying together in the vicinity of St. Louis Village and used by the
inhabitants as a common field prior to December, 1803 -- if the
land sued for was cultivated by Bequette before that time -- if
Bequette was an inhabitant of the village -- and if his title was
vested in the defendant -- then the verdict ought to be for the
defendant.
The verdict and judgment were in favor of the defendant. The
judgment was affirmed in the supreme court of the state. The
plaintiff took this writ of error.
Page 66 U. S. 599
MR. JUSTICE GRIER.
This case depends upon the solution of a single question
touching the construction of the Act of Congress of 13 June, 1812,
entitled "An act making further provision for settling the claims
to land in the Territory of Missouri."
This act declares
"That the rights, titles, and claims to town or village lots,
out-lots, common field lots and commons, in, adjoining, and
belonging to the several towns and villages named in the act and
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
and villages aforesaid, according to their several right or rights
in common thereto."
It provides also for a survey of the out-boundary lines of the
villages, so as to include the common lots and commons thereto
respectfully belonging, and donates to the town, for the use of
schools, all unappropriated pieces of land within such
out-boundary.
Surveys were made of the common fields called the Barrier de
Noyer, the St. Louis common, and a portion of the Cul de Sac field,
which were claimed by the Village or Town of St. Louis as early as
1820, when a township plat was returned. But no map had been
constructed, which purported to be a compliance with the duty
imposed on the Surveyor General by act, till the year 1840, when
the Surveyor General constructed a map, known in the courts as "map
X," exhibiting the out-boundary lines; but for some reason, or by
mistake perhaps, the common fields just mentioned were omitted.
The lots claimed by the several defendants are parts of these
excluded common fields.
The jury have found in each case that the lot in question
Page 66 U. S. 600
was a common field lot of the Village of St. Louis; that it was
inhabited, cultivated, or possessed prior to the 20th of December,
1803, by the persons under whom the several defendants claim.
Does the admitted fact that these same commons are not included
within the out-boundary map X affect the titles claimed under the
act?
The term "common field" is of American invention, and adopted by
Congress to designate small tracts of ground of a peculiar shape,
usually from one to three arpents in front by forty in depth, used
by the occupants of the French villages for the purposes of
cultivation, and protected from the inroads of cattle by a common
fence. The peculiar shape of the lot, its contiguity to others of
similar shape, and the purposes to which it was applied constituted
it a common field lot. It could not be confounded with lots or
tracts of land of any other character. Under the Spanish and French
authorities, that species of trespassers designated by the American
term "squatter" was wholly unknown. Villagers did not venture to
take possession of lots, either for cultivation or inhabitation,
without a formal license from the lieutenant governor.
When Congress, in fulfillment of our treaty obligations, came to
legislate on the subject of these claims and possessions, they
chose to except them from the provisions made by previous
enactments, of 1806 and 1807, requiring proof of some concession,
requete, or survey, under the former government, to be submitted to
commissioners to have surveys made, and a favorable report by them,
before the claims were confirmed. The claims of these old villages
to their common field lots and the peculiar customs regarding them
were well known. Congress therefore did not require that any
documentary evidence should be filed nor a report of commissioners
thereon. A survey was considered unnecessary, because the several
boundaries of each claimant of a lot, and the extent of his
possession, was already marked by boundaries well known among
themselves. They required no record in the land office, to give
validity to the title. The act is certainly not drawn with
Page 66 U. S. 601
much regard to technical accuracy. It is without that certainty
as to parties and description of the property granted which is
required in formal conveyances. But a title by statute cannot be
thus criticized. It sufficiently describes the lands intended to be
granted and the class of persons to whom it is granted. Besides, it
is not a donation or mere gift, requiring a survey to sever it from
other lands of the donor, but rather a deed of confirmation to
those who are admitted to have just claims. It passes a present
title,
proprio vigore, of the property described to the
persons designated; a patent to another afterwards, for any of
these lands, would be void because the government had already
released all title and claim thereto. If Congress could not grant
them to another, much less could the arbitrary edict or imperfect
performance of a neglected duty by a ministerial officer operate to
divest a clear title by statute.
The construction of this act of 1812 has been so often before
the courts of Missouri and this Court that it would be tedious to
refer to the cases. The case of
Guitard
v. Stoddard, 16 How. 508, need only be cited, as it
contains a review of previous decisions.
We there decide
"that the act of 1812 is a present operative grant of all the
interest of the United States in the property described in the act,
and that the right of the grantee was not dependent on the
factum of a survey under the Spanish government. That the
act makes no requisition for a concession, survey or permission to
settle, cultivate, or possess, or for any location by public
authority, as the basis of the right, title, or claim upon which
its confirmatory provisions operate. No board was appointed to
receive evidence, or authenticate titles, or adjust contradictory
pretensions. All these questions were left to be decided by the
judicial tribunals."
We have decided also that notwithstanding the act of 1824 makes
it the duty of claimants to proceed within eighteen months to
designate their lots, by proving the fact of inhabitation, and
their boundaries and extent &c., so as to enable the Surveyor
General to distinguish the private from the vacant
Page 66 U. S. 602
lots, yet that this act imposes no forfeiture for noncompliance.
The confirmee, by a compliance, obtained a recognition of his
boundaries but the government did not by that act impair the effect
of the act of 1812.
Now it is true that this Court has not decided directly as to
the effect of this map X upon the title to lots excluded by the
out-boundaries there traced, but it was only because the question
was not involved in the cases decided, and not from any peculiar
difficulty in the question itself, for its decision is but a
corollary from the principles already established by this Court. If
our decision be correct that no act of the Surveyor General was
necessary to give validity to the titles confirmed by this act,
a multo fortiori it could not operate to defeat them.
The evident purpose and object of this survey of the
out-boundary, required by the act was to distinguish the private
from vacant lots, so that the donation of the remnants to the
public schools might be ascertained. This duty was neglected by the
government officers for twelve years, when the act of 1824 was
passed. At this time, the fences which surrounded these common
fields and designated their boundaries had rotted down, and the
boundaries were difficult to ascertain. The act of 1824 was an
attempt to remedy this long neglected duty of the Surveyor General.
But it was found ineffectual, and after sixteen years more have
elapsed, and the lots, whose titles were confirmed by the act of
1812, may have descended to the second or third generations, the
Surveyor General seems to have waked up to the performance of his
duty. It was purely a ministerial function. His neglect could not
suspend the vesting of the titles granted, much less his blunders
forfeit them. If these verdicts be true, and we must assume they
are, the Surveyor General has never yet performed the task imposed
upon him of making a survey and map of the outboundary, including
out-lots, common field lots &c., belonging to the Village, now
City, of St. Louis.
The map X may be conclusive as between the government and the
schools, but as it was not necessary, even if correct,
Page 66 U. S. 603
to confirm the titles under which the defendants claim, its want
of correctness cannot now be a reason for their forfeiture.
Judgment of the Supreme court of Missouri affirmed.
