Stanford v. Taylor

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Missouri.

The case is stated in the opinion of the court.

It was argued by Mr. Lawrence and Mr. Johnson, for the plaintiff in error, and by Mr. Williams, for the defendant.

Mr. Lawrence made the following points, namely:--

This survey was entirely erroneous, as plaintiff claims and offered to show, for reasons;

1. That the location was such that it did not include the possession as required by the commissioners' certificate.

2. It did not adjoin Robert in any way, but was put three arpens west of it.

3. It was made upon the grant to Mad. Papin, long before surveyed and patented to her representatives, and held by them.

4. It was in violation of the instructions of the surveyorgeneral.

This survey was, therefore, void in every respect that could affect the plaintiff's rights under the confirmation. A survey, if necessary at all, is not final or unalterable. If wrong, it may (most certainly should) be corrected by the courts.

Kittridge v. Landry, 2 Rob., Lou. 72; Latiolais v. Richard, 6 Mar. Lou. (N. S.) 213; Fay v. Chambers, 4 Lou. An. R. 481.

It may be conceded that a survey by a government officer, made in a case of a confirmation for land, of which there had been no possession, and which is undefined and floating, should possess something of the nature of conclusiveness. But where there has been possession, and that possession is shown, and the land confirmed is for a definite location 'conformable' to that possession, no act of survey ought to affect the rights of the confirmee. To say that it could, would be to place every man's titles at the mercy of an executive officer.

The act of surveying is merely ministerial in its character, and if performed in open violation of facts and law-as it was in this case-it goes for naught, and should be disregarded entirely.

The true effect and force of a survey is properly declared in the fourth instruction of circuit court of Missouri, in the case of West v. Cochran, when it is stated to be prim a facie evidence of its conformity to the confirmation. The strong reason why this should be its only effect is, that it is made the duty of government to survey the lands of a confirmee, and to so survey it that it shall agree with the decision of the board. The land surveyed should be the same as that possessed originally.

The survey is intended only as an official designation of the land confirmed, for the purpose of obtaining patent evidence of title. When it violates the description in the concession, and is at variance with the decision of the commissioners, it is no survey; and the courts should at once proceed to correct that which the executive department has done under mistake, and in violation of a right confirmed by law. This case differs from that of West v. Cochran, 17 How. 403.

In that case, it is shown by the record, that Brazeau (through whom the plaintiff claimed) had never been in possession of the ground claimed by him. Nor had he, or any assignee or representative of his, ever had proper registry of the claim; nor did any one come before the board of commissioners as a claimant under the act of 1807.

The proofs and offers of proofs by plaintiff made out a good prim a facie case in ejectment.

Defendant showed no title in himself, and plaintiff ought to have been allowed to show the erroneous character of the surveys produced by the defendant. 9 Pet. 171; 10 Ib. 326, 340; United States v. Levy, 13 Pet. 83; 15 Ib. 172; 16 Ib. 146, 228; 8 How. 295; 10 Ib. 541; 11 Ib. 115.

Mr. Justice CATRON delivered the opinion of the court.