Glasgow v. Hortiz

Writ of error to the Supreme Court of Missouri.

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 p aintiffs 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 Fran ois 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.

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.

Mr. Bates, Attorney General, for plaintiffs in error. It appears that the land in question lies outside of the out-boundary as surveyed under the act of 1812, and outside of the limits of the corporation, as designated in 1809; yet the defendant, while this is obvious to the eye upon the map, and admitted upon the record, still insists that the land he claims, though clearly not within nor adjoining the town, did, nevertheless, belong to the town. If that were so, it was for him to show it. The jury, even, did not find it as a fact. Indeed they could not so find it; for the phrase 'belonging to the town,' as used in the act of 1812, does not imply ownership or proprietary right, but jurisdiction and governmental control. Neither did the court find it as matter of law. There is no such finding by court or jury in the case.

This question of out-boundary has never been passed upon by this court, and never by the Supreme Court of Missouri, except in this very case, as reported in 23 Mo., 532. And so, the supposition of adverse counsel, that this case is covered and controlled by the case of Guitard vs. Stoddard, (16 How., 507,) is a clear mistake. That case did not touch this question. In that case the question was not of locality-whether within or without the boundary-but a question of the time and manner of proving up the claim. The Circuit Court held that it could not be proven then, at the trial, but that the claimant ought to have made his proof before the recorder, under the act of May 26, 1824. And that was the point upon which this court reversed the judgment of the court below.

As the claimant, to make himself a beneficiary of the act, must needs show himself within the scope of the general grant, which does not name him, nor specify his land, let us consider the necessity of a survey of his private claim.

It is said that the claimants, in these cases of confirmation by the act of 1812, stand in no need of a survey to perfect their title by identifying their lands. I answer, if that be so, it is not because the law does not require in that case, as in all others, special locality and exact boundary, but because there are other easy and convenient means of precise description.

The act gran s only lots, not large tracts of land-lots in, adjoining, and belonging to towns, not lands in the wilderness lots to which the persons had a right, title, or claim in Spanish times-lots which were actually inhabited, cultivated, or possessed as long ago as 1803-lots, therefore, capable of definite proof. And if no other law required that proof, the act of May 26, 1824, (4 Stat., 65, Ch. 184,) makes it the duty of every claimant, who seeks to get the recorder's certificate of confirmation, to make proof 'of the fact of inhabitation, cultivation, or possession, together with the boundaries and extent' of his claim-(not of his right, title, or claim, for that was supposed to be already in the recorder's office, as was the fact in very many cases, proved by the reports of the recorder, which were confirmed by the act of April 29, 1816, Ch. 159.)

Besides, the act of April 29, 1816, Ch. 151, (3 Stat., 325,) after directing the survey of the public lands, proceeds to say: 'And also, it shall be the duty of the surveyor to cause to be surveyed the lands in the said Territories, the claims to which have been, or hereafter may be, confirmed by any act of Congress, which have not already been surveyed according to law.'

From the general tenor of our land laws, it is manifest that the Government intended that all private claims should be surveyed; and this particular act enjoins upon the surveyor to survey all lands confirmed, or to be confirmed, by any act of Congress. But how can he perform that duty in regard to confirmations of claims which exist only in the secret memories of the claimants and their witnesses-claims which have no record or other written basis, nothing in the public offices to which he can resort for information, and nothing upon the land itself to intimate a confirmation, or even a claim?

The possession of Hortiz of his little scrap-4.22 arpents-is only coeval with this action, (September 15, 1853,) so far as appears in this record, and yet he claims a confirmation then more than forty years old!

The surveyor, as in duty bound, went on, under the said act of 1816, to survey the public lands and such private confirmations as were made known to him. But the claim of Bequette (or Hortiz) was not made known to him, neither by record evidence, nor even oral pretension. He could not, therefore, survey it, for he could not know of its existence. And hence, when, in 1818, (two years after the passage of the act,) he was surveying township forty-five, both public and private lands, he could do no otherwise than treat section sixteen as public land, and survey it accordingly. And it was public land-so treated by both the nation and the State; and, therefore, if Bequette ever had any inchoate right to the land, he justly lost it by his laches.

Mr. Hill and Mr. Polk, of Missouri, for defendants. The survey was not a condition of the grant made by the act of 1812. The confirmation contained in the first section gave a free title, proprio vigore, to the inhabitants of the villages. Vasseur vs. Benton, (1 Mo., 296;) Janis vs. Gonno, (6 Mo., 380;) Page vs. Scheivel, (11 Mo., 167;) Carondelet vs. St. Louis, (25 Mo., 460;) Harrison vs. Page, (16 Mo., 182;) Kissel vs. Schools, (16 Mo., 553;) Gamache vs. Piquinot, (17 Mo., 310;) Soulard vs. Clark, (19 Mo., 583;) City of St. Louis vs. Tony, (21 Mo., 243;) Carondelet vs. St. Louis, (24 Mo., 31;) Guitard vs. Stoddard, (16 How., 494;) Gamache vs. Piquinot, (16 How., 451;) Savignac vs. Garrison, (18 How., 136.)

Mr. Justice GRIER.