Kissell v. St. Louis Public Schools

THIS case was brought up from the supreme court of Missouri by a writ of error issued under the 25th section of the judiciary act.

It was an ejectment, brought by the board of school commissioners, to recover from Kissell the following lot in St. Louis county, namely: Beginning on the west side of a street running parallel with and next east of Carondelet Avenue, called Lawrence street or Short street, at a point 120 feet south of the intersection of said street with Wood street; thence westwardly in a line parallel with Wood street 120 feet to an alley; thence southwardly along the said alley 90 feet; thence easterly in a line parallel with Wood street 120 feet, and thence to the place of beginning.

The suit was brought in the St. Louis circuit court, (state court,) where there was a judgment for the plaintiffs. Kissell carried it to the supreme court, where the judgment was affirmed, and a writ of error brought the case up to this court.

The school commissioners claimed title under the three acts of congress mentioned in the head note of the case, and the survey made in 1843, a copy of which was produced in court. Kissell claimed under an entry of fractional section 26, made by Robert Duncan, on the 2d of May, 1836, by virtue of a preemption right.

Without a copy of the map, it is difficult to convey to those members of the profession who are not familiar with Missouri land cases, a clear idea of the nature of this case. It may be proper, however, to mention that it contained numerous long and narrow parallelograms, which, it was contended, were the only lots referred to by the statutes as out-lots, &c., whilst the pieces of land designated by the surveyor as school lands were in detached pieces, scattered about in various places.

It was argued by Mr. Lawrence and Mr. Johnson, for the plaintiff in error, for whom there was also a printed argument filed by Mr. Thomas C. Johnson, of St. Louis. For the defendants in error, it was argued by Mr. Geyer.

The points made on behalf the plaintiff in error, were: 1. That, by the terms of the act of 1812, lots reserved for school purposes were such only as had a previous existence under the Spanish government. 2. That it was to the limits of the Spanish, and not to the limits of the American town, that reference is made in the proviso to the second section, limiting the lots reserved for the support of schools to one twentieth of the land within such town or village; and, 3. That by the term 'out boundary,' used in the first section, reference is not made to a continuous out boundary or 'ring survey,' but to the out boundary respectively of the town, common-fields, and commons, separately.

The points made by Mr. Geyer were the following, namely:

1. The act of congress of the 13th of June, 1812, making further provision for settling the claims to land in the Territory of Missouri, and the acts supplementary thereto, of the 26th of May, 1824, and 27th of January, 1831, together with the certificate of the surveyor-general of the survey, designation and setting apart of the land in controversy, for the support of schools, constitute a complete legal title, equivalent to a patent, conclusive upon the United States, to which the mere entry of the same land with the register and receiver must yield.

2. The survey of the out-boundaries of the town of St. Louis, given in evidence, having been made and certified by the surveyor general, in pursuance of authority vested in him by law, neither its accuracy nor its validity was open to question in the case at bar.

3. The certificate of the surveyor-general, of the survey, designating and setting apart the land in question, is evidence not only that it is within the out-boundaries, but that it was, at the time of designation, a vacant lot, reserved by the act of 1812, had not been selected for military purposes by the President, and does not, together with the lands before assigned, exceed the maximum limit; and, unless it appeared that the United States had no title, or the surveyor-general no authority to make the survey and designation, it is conclusive, upon a principle applicable alike to all official acts of public officers in the disposition of public lands.

4. The 'Plat and description of the survey of the outboundaries of the town (now city) of St. Louis,' made and certified by the surveyor-general, if not absolutely conclusive, is at least prim a facie evidence that it is in conformity with the requirements of the act of 1812, and, for the purpose of this case, that is all-sufficient. No evidence is necessary to support the survey, and there is none on the record competent to overthrow it.

5. If the survey and designation of the lot in question to the use of schools shall be held to be subject to review in a collateral action at law, still, it requires the production of no evidence in aid of it. It stands for proof until it is rebutted; and, in this case, there is no testimony produced by the defendant below, competent to repel or impair its force.

Mr. Justice CATRON delivered the opinion of the court.