1. Calls for the Mississippi River in deeds or conveyances from
one private individual to another private individual for lots in
St. Louis do not give or create riparian rights in the
grantees.
2. The eastern boundary of the Corporation of St. Louis of 1809,
and the eastern line of the out boundary of December 8, 1840, both
extend to the middle of the main channel of the Mississippi
River.
3. A street or tow path or pass way or other open space
permanently established for public use between the river and the
most eastern row of lots or blocks in the former Town of St. Louis,
when it was first laid out, or established, or founded, would
prevent the owners of such lots or blocks from being riparian
proprietors of the land between such lots or blocks and the river.
But this would not be true of a passageway or tow path kept up at
the risk and charge of the proprietors of the lots, and following
the changes of the river as it receded or encroached, and if the
enclosure of the proprietor was advanced or set in with such
recession or encroachment.
4. The Act of June 13, 1812, reserving certain lands for the
benefit of the public schools of St. Louis, does not reserve lands
made by accretion to lots on the river which were inhabited,
cultivated, and possessed by persons at the time of the cession of
December, 1803, and till the already-mentioned Act of June 13,
1812.
5. A concession which would have effect to bind a person when
claiming under it and when it relates to one piece of property, has
no effect when the person does not claim under it and when it
relates to another.
6. Where the instructions given to the jury are sufficient to
present the whole controversy to their consideration, and they are
framed in clear and unambiguous terms, it is no cause for the
reversal of a judgment to show that one or more of the prayers for
instruction presented by the losing party and not given by the
court were correct in the abstract.
7. The map known as Chouteau's map in the office of the record
of land titles at St. Louis is not evidence conclusive upon
questions of the extent of lots in that town. But it may go to a
jury with other evidence.
Page 77 U. S. 92
The City of St. Louis, as is known, is situated on the west side
of the Mississippi River and faces the stream. It was formed by the
French and Spanish in times as early as 1764, and passed to the
sovereignty of the United States by the cession which France made
December 20, 1803, of the large region then known as the Province
of Louisiana. French subjects being already in possession of
various rights throughout the town, Congress, by statute of 1812,
enacted that
"the rights, titles and claims to those town or village lots,
out-lots, common field lots and commons, in, adjoining, and
belonging to the towns which had been inhabited, cultivated or
possessed, prior to the 20th of December, 1803, should be, and the
same were thereby, confirmed to the inhabitants of the town
according to their several right or rights in common thereto."
The act proceeds, in its first section:
"And it shall be the duty of the principal deputy surveyor of
the said territory to survey the out boundary lines of the said
town, so as to include the out-lots, common field lots and commons
thereto belonging. And he shall make out plats of the surveys,
which he shall transmit to the surveyor general, who shall forward
copies of the said plats to the commissioner of the General Land
Office and to the recorder of land titles. The expense
of
surveying the said out boundary lines shall be paid by the
United States."
The second section of the act provided that
"All town lots, out-lots or common field lots included in such
surveys, which were not rightfully owned or claimed by any private
individuals, or held as commons belonging to such towns and
villages, . . . should be reserved for the support of schools."
In 1803, and indeed till the year 1844, there was a street
running nearly parallel to the Mississippi River and within less
than two hundred feet of it (the river rather eating into the bank,
year by year), known as Second Street, or sometimes
Page 77 U. S. 93
(in its extension), Prairie-a-Catalan or Carondelet. On the east
side of this street, a block of ground, No. 44, ran eastward --
ran, therefore, towards the river or to it; but whether "towards"
only or "to" was a matter of dispute. On the north side of this
block, for many years prior to the cession of 1803, one Madame
Charleville had been settled, inhabiting and cultivating it, and on
the south side, a free negro, named Charles Leveille.
In 1844, an extraordinary flood in the Mississippi River brought
down such an immense quantity of sand that the river edge, which
had previously, as above said (though apparently with some
irregularities herein), kept itself within less than 200 feet of
Second Street, now was left 600 or 700 feet away from it. The
diagram will illustrate sufficiently the facts:
image:a
The result was that the city caused to be extended down to the
new edge of the river those streets (Hazel and Lombard) which,
running at right angles to the old stream, formerly met it at their
extremity and it made a new street
Page 77 U. S. 94
(New Main Street) parallel to old Second Street. The idea will
be better understood from a diagram:
image:b
A new block (No. 856) was thus formed out of the alluvion,
immediately in front of old 44, the block formerly occupied by
Madame Charleville and Leveille. To whom did this new block
belong?
That was the question in this case. And as the riparian owner,
whoever he might be, took the accretions, the answer depended
obviously enough on the fact whether the old block (No. 44) had run
down to the river or whether it had stopped short of the river,
leaving a strip not owned by any private person, and which,
therefore, either belonging to the city itself or else was property
of the United States, and under the act of 1812, was reserved for
the public schools.
In this state of facts, the directors of the public schools of
St. Louis brought ejectment, in one of the state courts, against a
certain Riley, who had succeeded to the rights of Madame
Charleville, and also against Fritz, who had succeeded to the
rights of Leveille, to recover the block. The former case (No. 27
on the docket) is here reported, it being understood that the
latter case (No. 28) should follow any decision given in the
other.
The plaintiff, relying on the act of 1812, introduced a
Page 77 U. S. 95
large amount of documentary evidence, and among other
concessions one to a certain Louis Ride, and a confirmation of it,
with a survey of the same by the surveyor general. According to
this survey, the claim was located in the northwest corner of block
No. 44 and extended eastwardly no further than 150 feet. He
introduced also several plots of the town, among them especially
one known as Chouteau's map, with the opinion of the Supreme Court
of Missouri given in the case of
St. Louis Public Schools v.
Erskine. [
Footnote 1] In
that case, where apparently objection had been made to the
reception of the map at all, the court said:
"The first question that arises in this case is the propriety of
the action of the Land Court in admitting in evidence the plat of
the Town of St. Louis, placed in the office of the record of land
titles by Auguste Chouteau in the year 1825. The plat was made in
1764, about the period that the Village of St. Louis was founded.
Chouteau is reputed as one of the founders of the village. The
recorder of land titles, who had been in the office since 1837,
testified that it was a public paper and as such had been
inventoried. August Chouteau has been dead many years. Mr. Geyer
testified that he had seen the plot in the recorder's office
several times; that this map was produced in a case he tried for
the schools twenty-four or twenty-five years ago."
"When we consider that in matters of public concern,
traditionary evidence is admissible as to boundaries, we are at a
loss to conceive the ground on which the objection to the evidence
is based. Chouteau was not the owner of the land on which the
village was laid out, nor does it appear that he had any previous
authority to do the act. But his conduct and that of his colleagues
in laying off the town was sanctioned and adopted by the Spanish
government. For many years the map has been placed in the public
office where all the papers and documents relating to the early
land titles in this territory were deposited. It has been exposed
to the examination and scrutiny of all, so that its errors might
have been detected. The map was made at a time and in a manner
which show that its execution could not have been prompted by any
sinister motive. "
Page 77 U. S. 96
"We know that it has frequently been in use in this Court, to
show the plans and extent of the ancient village as originally laid
out by its founders. For such purposes, when all the circumstances
attending this map are considered, it is not easy to conceive more
satisfactory evidence of facts of so ancient a date. If authority
is wanted, in support of this view of the subject, it may be found
in the cases of
Morris v. Lessees of Harmer's
Heirs, 7 Pet. 560, and
The Commonwealth v.
Alburger, 1 Wharton 469."
Chouteau's plat represented the place thus, leaving a broad
strip between block No. 44 and the river:
image:c
The defendant, on the other hand, introduced a concession by the
Spanish governor, dated March 1, 1788, to the negro Leveille, for a
lot in St. Louis of 60 by 150 feet,
Page 77 U. S. 97
described in the concession as bounded on the one side by the
heirs of Louis Ride, on the other by his Majesty's domain,
on
the rear by the Mississippi, and on the main front by the road
which follows from the second main street to the
Prairie-a-Catalan.
He also introduced a concession by Governor Manuel Perez to
Augustin Amiot, dated September 2, 1788, of a lot in the southern
part of St. Louis, described in the concession as
"120 feet front by 150 feet deep, bounded on the north side by
the lot of the free negro called Charles, on the other side by the
royal domain,
on the rear by the Mississippi, and on its
principal front by the royal road leading to the
Prairie-a-Catalan."
Both parties introduced parol evidence tending to show:
On the defendant's side, that in Spanish times the lots
ran to the river; that there was never any street between the east
end of the lots and the river; that the ends of the fence would
sometimes have to be moved back on account of the abrasion or
falling in of the river bank; that the river, for some years prior
to 1844, occasionally slightly receded from the east bank in low
water, but that in consequence of high water in 1844 and of
accumulations caused by the materials used in constructing cross
streets out in the river, the ground afterwards increased rapidly
eastwardly.
On the plaintiff's side, the parol evidence tended to
prove that there was always a path or road between the lots and the
river in Spanish times, and that the road extended the whole length
of the town; that the government always left a strip of land along
the river for voyagers, but that the road along the river was
repaired by the voluntary act of the people living along the road,
and not by public authority or public taxes.
The defendant gave in evidence a resolution of the board of
aldermen of the City of St. Louis, authorizing a survey and map of
the city, and a lithographic copy of a map known as Paul's map of
1823, which was proved to be a true copy of the original made under
such resolution. It was admitted that the field notes of the survey
and the original map were
Page 77 U. S. 98
lost. From this map it appeared that the main street extended at
the date of the map no further south than Plum Street, and that the
river covered all the eastern part of Block 44. The defendant then
introduced the ordinance of
image:d
the city, passed in 1851, opening Main Street south of Plum and
through Block 44, and proved that defendant, in conformity
Page 77 U. S. 99
with the ordinance, relinquished the right of way; also a tax
sale of the lot of Leveille for the city taxes of the year 1820.
The certificate of sale of the assessment describe the lot as
bounded east by the river.
The defendant also showed in evidence the tax receipts for his
real property for the years 1837, 1838, 1839, 1845, 1846, 1847,
1848, 1849, 1853, 1854, 1855, 1856, 1857. From these receipts, it
appeared that up to 1853 the defendant was taxed for a lot in Block
44, as bounded on the east by the river. The depth of the lot was
described as increasing from 150 feet in 1837 to 800 feet in 1854.
In 1854 and following years, the defendant was taxed for the
property in dispute as lying between Main and Front Streets. The
defendant also showed that he had been assessed by the city, and
had paid in 1854 a tax on the property in question for opening
streets, and then introduced a map of Risley's Addition, recorded
in 1855.
The defendant then introduced one Marshall as a witness, who
testified that he was an examiner of titles to lands; that he had
examined almost all titles to lands in the City of St. Louis, and
he gave it as his conclusion, that the land of Ride was north of
Elm Street -- that is to say was nowhere in the neighborhood of
Madame Charleville's lot, but was in fact in a different and
distant part of the city. He also read in evidence a deed to Tayon
to Papin in 1832, in which the lot was described as bounded
eastwardly by the Mississippi River, or street if any there be;
also the deed of Papin to Stearne and Riley, containing the same
boundaries; also the deed of Stearne to Riley in 1836, with the
same boundaries.
There was much other testimony on both sides, but that above
stated constituted the controlling parts, and the residue was
merely auxiliary or cumulative.
Upon this case, the plaintiff's counsel asked the court to give
fourteen instructions, the purpose of which, in the general, and so
far as insisted on here, was to charge the jury as to the effect in
law of the evidence, and that the plan of the town by Chouteau
should be taken as a conclusive
Page 77 U. S. 100
muniment of title. [
Footnote
2] The court gave none of these instructions. But it did
instruct the jury in effect,
FOR THE PLAINTIFF:
1. That calls for the river, in the deeds or conveyances read in
evidence, from one private individual to another, did not give or
create riparian rights.
2. That the eastern boundary of the Corporation of St. Louis of
1809, and the eastern line of the out boundary of December, 1840,
both extended to the eastern boundary of Missouri, which is the
middle of the river.
3. That if the jury believed that a street, tow path, or
passageway, or other open space, was permanently established, for
the public use, between the river and the most eastern row of
blocks (of which 44 was one) when the town was founded and laid
out, then that the owners of that block were not riparian
proprietors of the land between the block and the river.
FOR THE DEFENDANT:
1. That if the jury believed that the original claimant, prior
to the cession, inhabited, cultivated, and possessed the land
described in the petition, claiming title to the same, and that she
and those claiming title under her continued to inhabit, cultivate,
and possess the premises to the passage of the act of 1812, and
that the land in controversy is a part of the accretions made to
that lot along the eastern line extending to the river in its
present position, then that the verdict must be for the
defendant.
2. That the evidence that a passageway or tow path existed along
the river bank would not affect the rights of the parties if the
jury found that the same was kept up at the charge and risk of the
proprietor of the lot, and that it followed the changes of the
river, going to the east or west as the river receded from or
encroached upon the lot, and the
Page 77 U. S. 101
the enclosure of the proprietor was advanced or set back with
such changes.
3. That the claim confirmed to Louis Ride could not affect the
rights of the parties if the jury found that the claim was located
on a different block from that of Madame Charleville.
The jury found for the defendants, and judgment having been
entered accordingly and afterwards affirmed in the Supreme Court of
Missouri, the case was brought here under the 25th section of the
Judiciary Act.
Page 77 U. S. 106
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Possession of the colony or province of Louisiana, ceded by
France to the United States under the Treaty of Cession
Page 77 U. S. 107
of the thirtieth of April, 1803, was formally delivered to the
United States on the twentieth of December of that year; and on the
thirteenth of June, 1812, Congress passed the act making further
provision for settling the claims to land in the Territory of
Missouri, the first section of which provides to the effect 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 or villages therein named, including St. Louis, in
that territory, "and which have been inhabited, cultivated, or
possessed" prior to the date of that formal delivery,
"shall be and the same are hereby confirmed to the inhabitants
of the respective towns or villages aforesaid, according to their
several right or rights in common thereto. [
Footnote 3]"
Lands confirmed by the board of commissioners were not included
in that section, and the further provision is that the principal
deputy surveyor of the territory shall survey or cause to be
surveyed and marked, where the same has not been legally done, the
out boundary lines of the said towns or villages, so as to include
the out-lots, common field lots, and commons thereto respectively
belonging.
Provision having been made in the first section for such
surveys, the second section provides that all town or village lots,
out-lots, or common field lots included in such surveys, which are
not rightfully owned or claimed by private individuals or held as
commons belonging to such towns or villages, or selected by the
President for military purposes, "shall be and the same are hereby
reserved for the support of schools in the respective towns or
villages aforesaid," not to exceed, however, one-twentieth part of
the whole lands included in such general survey.
Part of block numbered eight hundred and fifty-six, situated in
the City of St. Louis, is claimed by the plaintiffs in this case
under the second section of that act, as appears in the description
of the tract set forth in the petition, which is in the nature of
an action of ejectment to recover possession
Page 77 U. S. 108
of the premises. Process was duly issued and served, and the
defendant appeared and filed an answer in which he denied that the
plaintiffs, at the commencement of the suit, were entitled to the
immediate possession of the same, and he also denied that he, the
defendant, did, at the time mentioned, unlawfully withhold from the
plaintiffs the possession thereof as alleged in the petition.
Application for change of venue was subsequently made by the
plaintiffs, and the cause, in pursuance of such application, was
transferred into the St. Louis circuit court, where the parties
went to trial, and the verdict and judgment were for the defendant,
and the plaintiffs excepted and removed the cause into the supreme
court of the state.
Subsequent to the removal of the cause into the Supreme Court
the defendant deceased and his legal representatives became parties
to the suit, and after hearing, the judgment of the circuit court
of the state was in all things affirmed, and the plaintiffs sued
out a writ of error under the twenty-fifth section of the Judiciary
Act, and removed the cause into this Court.
By the bill of exceptions it appears that the plaintiffs in the
trial before the jury in the circuit court of the state introduced
the following evidences of title in support of their claim to the
immediate possession of the premises:
(1) A copy of the ordinance dated November 9, 1809,
incorporating the Town of St. Louis.
(2) Survey and plat of the boundary of the town, which purport
to have been made in conformity to the requirements of the first
section of the before-mentioned act of Congress.
(3) School assignment numbered four hundred, and dated December
10, 1855, as more fully set forth in the transcript.
(4) An act of the state legislature, approved November 23, 1857,
which it is agreed may be read from the printed volume.
(5) Copy of the deed from the City of St. Louis to the
plaintiffs relinquishing to them the land in controversy.
(6) Quit-claim deed from the plaintiffs to the City of St. Louis
relinquishing their title to certain tracts therein specified.
(7) An act of the legislature of the state, approved March 3,
1851, entitled
Page 77 U. S. 109
"An act respecting swamp lands in St. Louis County."
(8) Three acts of Congress upon the subject, to-wit, the Act
passed June 13, 1812, also the Act passed May 26, 1824, and the Act
passed January 27, 1831, to which reference is made. [
Footnote 4]
(9) A stipulation waiving objections to certain depositions, and
agreeing that the defendant was in the possession of the premises
at the commencement of the suit.
Separate examination of the respective evidences of title
introduced by the plaintiffs will not be necessary, for two
reasons:
(1) Because the defendant concedes that the assignment of the
land to the schools under the act of May 26, 1824, vested a good
title in the plaintiffs, unless the title to the same was confirmed
by the first section of the prior act to those under whom the
defendant claims a superior title.
(2) Because the questions to be determined are presented in the
exceptions to the refusals of the court to give the instructions as
requested by the plaintiffs and to the instructions given by the
court to the jury.
Both parties agree that the land in controversy adjoins block
forty-four, which belongs in part at least to the defendant and is
not claimed by the plaintiffs. They also agree that prior to 1844
block forty-four was the front block facing the river, and that the
land of the entire block in controversy has been formed since that
time by alluvial deposits, but the theory of the plaintiffs is that
block forty-four, as originally located and marked on the plan of
the town, never extended to the river, that there was in fact a
margin of shore between that block and the river, which was
reserved for public use as a way for voyagers or a tow path for
persons engaged in propelling boats, and that such way or tow path
never was a part of the block possessed and claimed by the
defendant and his associates.
Suppose the fact to be so, then it is not pretended by the
defendant that the land described in the petition was confirmed by
the first section of the act of June 13, 1812, but he denies the
entire theory of the plaintiffs and insists that
Page 77 U. S. 110
there never was any such public reservation between the block
possessed and claimed by him and the river, as is supposed by the
plaintiffs; that the use of the supposed margin by voyagers and
other persons as a way or tow path, if any, was permissive and by
consent of the owners of the block, and that the block as laid out,
inhabited, cultivated and possessed was always understood to extend
to the river, and consequently that the same was confirmed by the
first section of the before-mentioned act of Congress, as contended
by the defendant.
Conceded, as the fact is, that the title to block forty-four was
in those under whom the defendant claims, prior to the alluvial
deposits which formed the land described in the petition, the
principal contest in the state court was and still is as to the
extent and boundaries of that block antecedent to the time when the
land in controversy was formed by such alluvial deposits and
accretions. Beyond doubt, block forty-four, if it was inhabited,
cultivated, and possessed prior to December 20, 1803, as claimed by
the defendant, was confirmed by the first section of the Act of
June 13, 1812; and if it extended to the river at that time it is
clear that the owners thereof were riparian owners; and if so, it
is equally clear that they were entitled, as such to all the
accretion thereto occasioned by alluvial deposits or by the gradual
recession of the waters of the river from the usual water mark.
[
Footnote 5]
On the other hand, unless that block extended to the river, as
supposed by the defendant, it is certain that he has no title to
the land in controversy, as those under whom he claims in that
state of the case were not riparian proprietors, and the act of
Congress referred to as confirming the title to that block could
not and did not have the effect to enlarge its boundaries.
[
Footnote 6]
Evidence, written and oral, was introduced by the defendant to
show that the northern half of block forty-four
Page 77 U. S. 111
was inhabited, cultivated, and possessed by Madame Charleville
and her children several years before the treaty of cession was
ratified, and the witnesses testify that there was a house and barn
on the lot and other improvements, and that it extended to the
river. She and her family occupied and cultivated the northern half
of the block, and the witnesses also testify that it was fenced in
on all sides excepting the side bordering on the river, and the
evidence to that effect is full and satisfactory. They admit,
however, that there was a passageway on the shore or bank of the
river kept by the owner for her own convenience, where people used
to pass as on a street or alley, but they generally agree that it
was not a public way, and that it was frequently interrupted by
fences built by the owner of the premises.
Parol evidence was also introduced by the defendant, showing
that Charles Leveille inhabited, cultivated, and possessed the
southern half of that block prior to the ratification of the treaty
of cession, and the defendant introduced the original concession to
him of that part of the block, dated March 1, 1788, and also a
translation of the same, and the proofs show that his lot was sixty
by one hundred and fifty feet, and that it was inhabited,
cultivated, and possessed by the donee of the tract some eight
years before the date of the concession.
As there described, the lot is
"bounded on one side by the land of Louis Ride, on the other by
His Majesty's domain, on the rear by the Mississippi, and on the
main front by the road which follows from the second main street to
the Prairie-a-Catalan."
He also introduced a concession from the governor to Augustin
Amiot, dated September 2, 1788, of a lot in the southern part of
St. Louis, described in the concession as follows, to-wit:
"120 feet front by 150 feet deep, bounded on the north side by
the lot of the free negro called Charles, on the other side by the
royal domain, on the rear by the Mississippi, and on the principal
front by the royal road leading to the Prairie-a-Catalan."
Other exhibits were also introduced by the defendant as fully
set forth in the record, and the parties agreed that
Prairie-a-Catalan and Carondelet, as used in the record, mean the
same thing.
Page 77 U. S. 112
Defendant also introduced a resolution and ordinance of the
city, adopted in 1823, in relation to the survey of the city, and
also a lithographic copy of the map made by the city surveyor in
accordance with that ordinance; also the revised ordinances of
1843, concerning streets. Proof was also introduced by him to show
that the original map was lost and that the copy was correct, and
it appears that it was put in evidence to show that Main Street, at
that date, extended no further south than Plum Street, and that the
eastern part of block forty-four, as now claimed, was a part of the
bed of the river.
By the record it also appears that the defendant introduced a
tax sale of the lot occupied by the colored man, Charles Leveille,
for the nonpayment of the taxes for the year 1826, and the
assessment shows that the lot was therein described as bounded east
by the river. Tax receipts for ten or fifteen years, given for the
taxes paid by the defendant, as assessed on his property,
commencing in the year 1837 and ending in the year 1857, were also
introduced by the defendant, and it appears that prior to the year
1853 he was taxed for a lot in block forty-four, described as
bounded on the east by the river.
Rebutting evidence, written and oral, was then introduced by the
plaintiffs, tending to show that there was a public passageway or
street between block forty-four and the river, and that no part of
that block ever extended easterly beyond that passageway.
Chouteau's map is one of the written evidences referred to as
having been introduced by the plaintiffs, and they insisted, and
still insist, that their title to the land in controversy is
conclusively shown by that document.
When the plaintiffs rested, the defendant was permitted to
rejoin, and he introduced new evidence to show that the block as
originally inhabited, cultivated, and possessed did extend to the
river, and that there never was any such public passageway or
street as that described by the plaintiff's witnesses.
Both parties resting, instructions were given by the court
Page 77 U. S. 113
to the jury, first at the request of the plaintiffs, and
secondly at the request of the defendant, but the finding of the
jury was adverse to the plaintiffs, affirming the theory of the
defendant, that there was not any such public passageway or street
between the river and block forty-four, as is supposed by the
plaintiffs, and that the block referred to, as originally located,
did extend to the river, as claimed by the defendant.
Five instructions presented by the plaintiffs were given by the
court to the jury as requested, and three presented by the
defendant were also given without any qualification, but the
plaintiffs presented at the same time fourteen other prayers for
instruction which were refused by the court. Reference is made to
the record for the precise form of the instructions as requested
and given or refused, as they fill too much space to be reproduced
without abbreviation. Those given at the request of the plaintiffs
are in substance and effect as follows:
1. That calls for the river, in the conveyances read in
evidence, do not give or create riparian rights.
2. That the eastern boundary of the city and the eastern line of
the out boundary, as read in evidence, extended to the middle of
the channel of the river.
3. That if the jury believe from the evidence that a street, tow
path, or passageway, or other open space, was permanently
established, for the public use, between the river and block
forty-four when the town was founded and laid out, then, and in
that case, the owner or owners of that block were not riparian
proprietors of the land between that block and the river.
Two other instructions were given at the request of the
plaintiffs, but they are omitted as not material in this
investigation, because they are the same in principle as those
already reproduced.
Instructions were then given to the jury as requested by the
defendant, which are in substance and effect as follows:
1. That if the jury believe from the evidence that the original
claimant, prior to December 20, 1803, inhabited, cultivated, and
possessed the land described in the petition, claiming title to the
same, and that she and those claiming title under
Page 77 U. S. 114
her continued to inhabit, cultivate, and possess the premises to
the passage of the act of June 13, 1812, and that the land in
controversy is a part of the accretions made to that lot along the
eastern line extending to the river in its present position, then
the plaintiffs cannot recover, and the verdict must be for the
defendant.
2. That the evidence that a passageway or tow path existed along
the river bank will not affect the rights of the parties if the
jury find from the evidence that the same was kept up at the charge
and risk of the proprietor of the lot, and that it followed the
changes of the river, going to the east or west as the river
receded from or encroached upon the lot, and that the enclosure of
the proprietor was advanced or set back with such changes.
3. That the claim confirmed to Louis Ride cannot affect the
rights of the parties if the jury find from the evidence that the
claim was located in another and different block from that
inhabited, cultivated, and possessed by Madame Charleville.
Obviously the third instruction given at the request of the
plaintiffs is in substance and effect the same as the first
instruction given at the request of the defendant, and it is clear
that those instructions fairly presented the whole merits of the
controversy to the jury as it is exhibited in the pleadings and
evidence. [
Footnote 7]
No attempt is made by the plaintiffs to call in question the
instructions given at their own request, nor could they be
permitted to do so if the attempt was made, as such errors, if any,
are to be imputed to the party making the request rather than to
the court. [
Footnote 8]
They do insist, however, that the instructions given at the
request of the defendant are inconsistent with those given at their
request, but the court, after having carefully examined and
compared the respective instructions referred to, is of the opinion
that the proposition finds no support in the record.
Page 77 U. S. 115
Where the instructions given to the jury are sufficient to
present the whole controversy to their consideration, and they are
framed in clear and unambiguous terms, it is no cause for the
reversal of a judgment to show that one or more of the prayers for
instruction presented by the losing party and not given by the
court were correct in the abstract, as the refusal of the court to
give the instructions as requested, under those circumstances,
would not work any injury to the party making the request, and
therefore cannot be regarded as error. [
Footnote 9]
Apply that rule to the present case and it is not necessary to
add another observation in respect to the prayers for instruction
presented by the plaintiffs, and which were not given by the court.
Certainly the instructions given, as well those given for the
plaintiffs as those given for the defendant, are clear and
unambiguous, and they expressly concede that the plaintiffs must
recover if block forty-four was bounded on the east by a street,
passageway, or tow path, which is all that the plaintiffs now ask,
if the case is one to be submitted to the determination of a jury.
They contend that Chouteau's map is conclusive in their favor, but
the court is of a different opinion, and accordingly affirms the
correctness of the other branch of the instructions, in which the
jury were told that their verdict must be for the defendant if they
found from the evidence that there was no such street, passageway
or tow path between that block and the river, and that the river,
when the town was laid out and when the act of confirmation was
passed, constituted the eastern boundary of that block. [
Footnote 10]
Suffice it to say, without pursuing the argument further, that
the Court is of the opinion that the instructions were in all
respects proper and that they were clear and unambiguous and amply
sufficient to enable the jury to dispose
Page 77 U. S. 116
of the whole controversy as exhibited in the pleadings and
evidence. [
Footnote 11]
Complaint is also made by the plaintiffs that the court erred in
not regarding Chouteau's map as a muniment of title conclusive in
their favor; but the Court is of the opinion that the view taken of
it by the state court is correct, and that it was properly regarded
as evidence of title, and not as a muniment of title conclusive in
itself, and that as such it was regular to submit it to the jury
with the other evidence introduced by the parties. Neither party
can justly complain, as the action of the court in giving the
instructions was in accordance with their respective requests.
Ejectment was also brought by these plaintiffs in the same
court, at the same time, against Mary Fritz, to recover possession
of the southern part of the same block. Before trial the venue was
changed, as in the preceding case, to the same circuit court, where
the parties went to trial, and the verdict and judgment were for
the defendant or her legal representatives. Appeal was taken by the
plaintiffs to the supreme court of the state, and the judgment in
that court was affirmed. They then removed the case into this
Court, where it is numbered twenty-eight on the calendar, and it
was argued and submitted to the Court here at the same time with
the case just decided. Since that time it has been carefully
examined, and it should be remarked that the facts of the case are
in many respects different from the case just decided, but the
differences are not of a character to affect the result in this
Court, and as both parties agree that the decision of the case must
follow that in the preceding case, it is not thought necessary to
point out those differences.
Decree in each case affirmed.
[
Footnote 1]
31 Mo. 112, 113.
[
Footnote 2]
The reader interested specially in the case can see these
fourteen instructions in the report of the case below, 40 Mo.
358.
[
Footnote 3]
2 Stat. at Large 748.
[
Footnote 4]
2 Stat. at Large 748; 4
ibid., 65, 435.
[
Footnote 5]
Kissell v.
Schools, 18 How. 21.
[
Footnote 6]
Railroad v.
Schurmeir, 7 Wall. 287; 3 Kent's Commentaries, 11th
ed., 427.
[
Footnote 7]
The Schools v. Riley, 40 Mo. 365.
[
Footnote 8]
Buie v. Buie, 2 Iredell 87.
[
Footnote 9]
Law v.
Cross, 1 Black 536;
Hall v. Hall, 6 Gill
& Johnson 386.
[
Footnote 10]
Jones v.
Soulard, 24 How. 41;
Smith v. Public
Schools, 30 Mo. 301;
Le Beau v. Gaven, 37
id. 556;
Dovaston v. Payne, 2 Smith Leading Cases
(6th Am ed) 243.
[
Footnote 11]
Savignac v.
Garrison, 18 How. 136;
New
Orleans v. United States, 10 Pet. 662;
Railroad Company v.
Schurmeir, 7 Wall. 287.
