Kissell v. Board of President of the St. Louis Public Schools

1. The survey, designation and setting apart, for the support of schools, of a piece of property, described to be within the out boundary of the town, as directed to be surveyed under the act of June 13,1812, taken together with the act of 1831, make a regular, formal title to the property so set apart. 2. An entry of the same land with the register and receiver must yield, in an action of ejectment, to the title under such designation. . 8. If the purchaser, under such an entry, is allowed to question the legality of the act of sotting the property apart for the support of schools, he must show it to ho entirely without authority of law, and void, in order to have benefit from such impeachment of title. 4. A designation, which describes the land set apart for schools, as "within the bounds of the survey directed to be made by tbe first section of the act of June 13,1812/' <fcc.? and as " within the limits of the town of St. Louis, as it stood incorporated on the 13th June, 1812/' &c., is not invalid obits face, although it does not state that the land thus set apart ever was, in whole or in part, a town lot, out-lot or common field lot, belonging to tbe town, or that it was set apart as such. 5. The fact that the survey of the out boundary of St. Louis, under the act of 1812, professes to be a survey of tbe incorporated town, with the out-lots, common field lots and commons, does not invalidate it, when? it is manifest that the incorporated town* according to its own limits, must be within the out-boundary required to be ran. 6. The fact that the survey of the out-boundary includes too much or too little land, does not invalidate it, as to any property rightly included within it; and to impeach the* survey, it must he shown that the land in dispute was not rightly included. 7. The first section of the act of 1812 contemplates a continuous out-boundary of the? towns, to be so run as certainly to include the out-lots, common field lots and commons of the towns. 8. It was not necessary, in order that property included within the out boundary should be-reserved for the support of schools, that it should! have been surveyed into town lots* out-lots or common field lots under the Spanish government. 0„ The act of 1812 was designed to dispose of all the property included within the out-boundaries of the towns. 10. Vacant land contiguous to the town of St. Louis, bounded on all sides except one fronting on the river, by land surveyed into lots, might properly have been set apart as an out-lot, according to the practice of the' government, though it had never itself been surveyed as a lob.

Error to St. Louis Circuit Court. This was an ejectment for a lot south of Mill Creek, in Eran® and Langham’s addition to the city of St. Louis. On the trial, the plaintiffs below, defendants in error, offered tbe following documents in evidence : - 1. An order of the St. Louis Court of Common Pleas incorporating the town of St. Louis, dated November 9, 1809, a copy of which may be found in the report of the case of Eberle v. Public Schools, 11 Mo. Rep. 248. 2. A map marked X, purporting to be a plat and description of the survey of the out-boundary line of the town of St. Louis, in the territory of Missouri, as it stood incorporated on the 13th June, 1812, including the out-lots, common field lots of the common fields of St. Louis, and the commons thereto belonging, made in pursuance of the first section of the act of congress, approved June 13th, 1812, entitled “ an act making further provision for settling the claims to land in the territory of Missouri.” 3. A survey by the surveyor general, in pursuance of instructions from the commissioner of the general land office, setting apart, for the use of schools in the city of St. Louis, certain land, including the premises in question. Tbe possession o£ the defendant was admitted. At the close of the plaintiffs’ case, the defendant asked the following instruction: ‘ ‘ The map marked X and the location and survey do not prove or tend to prove that the premises in question are any part of a field lot, out-lot, or town or village lot, within the meaning of the act of June 13th, 1812, and reserved for the use of schools, within the meaning of the said act and the several acts of congress in relation to said reservations.” This instruction was refused and the defendant duly excepted. The defendant then introduced the following evidence : 1. Survey of fractional section twenty-six, township forty-five north, range seven, east of fifth .principal meridian, dated March 25, 1836 ; also, a plat of said survey. 2. Certified copy of entry by Robert Duncan, on preemption allowed of said fractional section, from the office of the register and receiver at St. Louis, dated May 2, 1836. 3. Receipt of the register and receiver for the purchase money. 4. Records and deeds deducing title from Robert Duncan to defendant. 5. An old map, known as Chouteau’s map, found in the office of the recorder of land titles, purporting to be made in 1780, and to represent the Spanish town of St. Louis, as fortified by Lieutenant Governor Cruzat. This map was verified by witnesses and represented the south line of fortifications as north of Mill Creek. 6. An ordinance of the trustees of the town of St. Louis, made in 1811, establishing the boundaries of the town, by which Mill Creek is fixed as the southern boundary. 7. Assessment roll of the town for the year 1812, in connection with the testimony of William C. Carr, who was then assessor, showing that the municipal jurisdiction was confined to the boundaries stated in the above ordinance. 8. The following surveys, plats and maps : Maps of Ste. Genevieve and New Bourbon ; plat of Yillage-a-Robert; survey of Portage des Sioux ; Spanish survey of Chouteau Mill tract; surveys 316, 317 and 318, vacant land at south end of town of St. Louis, and 314 and 315 ; township map of township 45, range 7 east; plats1 of common fields of St. Louis, Grande Prairie and Prairie des Noyers common fields, and field notes of the survey of these common fields. William H. Oozzons, Robert Simpson, René Paul, Pascal L. Cerré and David Adams, witnesses for defendant, gave evidence showing that the actual southern boundary of the in.habited part of the town, in 1812, and for many years after-wards, was north of Mill Creek, and that, at that time, there were no town or village lots south of the creek. Paul testified that he surveyed the town in 1816 and again in 1823 ; that in 1816, there were no buildings on fractional section 26, but in 1823, there was a brick house next north of Soulard’s line. He did not know whether there was any occupation between Soulard’s line and the creek, in 1816. Cerré testified that there was some unoccupied land between Soulard’s farm and the creek, in 1812, or about that time. Moore stated that, in 1814, fthere were no buildings or timber south of the creek, until you came to Soulard’s farm ; that there was an open space between -the farm and creek. Adams stated that there was vacant land between the creek and Soulard’s lines, and that there were no inclosures there in 1812. Papin, Ortez, and Vasquez stated substantially the same. It was also shown that the lot in question was not covered by the common fields. William Milburn testified that he was surveyor general in 1839-40-41, and clerk in the office as far back as 1816, and that he constructed map X, given in evidence by plaintiffs, from previous surveys made under the authority of his predecessors in office; that Brown made different surveys, under the authority of government, of Prairie des Noyers, Grande Prairie fields,, common fields and commons, between 1817 and 1820, all of which were made by retracing lines made under the Spanish government; that the lines on the map were taken from these surveys, except the line of the commons, taken from survey of commons in, 1832 or J33 ; that the line of the corporation, as marked on map X, was first run ip 1820, and the north line thereof was resurveyed, in making the map. Witness stated that there never was any survey of out-lots, eo nomine-; but there were surveys of commons, common field lots and village. On cross examination, he stated that map X correctly delineated the out-boundary of the town of St. Louis, including the commons, common fields and out-lots, except that it might have included the Grande Prairie common fields., Prairie des Noyers, some common fields south-west of Grande Prairie, and Cul de Sac common fields. If these had been included, it would not alter the effect of the survey on ■the parties to this suit. Plaintiffs, in reply, offered evidence tending to show that the land set apart and claimed was of the description reserved for schools by the act of June 13, 1812. To this defendant objected, for the reason that, if the plaintiffs claimed the land as an out-lot, they should have given the evidence 'before they rested and not in reply — 'that it was a new and distinct claim. The objection was overruled and defendant excepted. Plaintiffs then gave in evidence various concessions of lots along the river, north and south of the village of St. Louis, and confirmations of the same, showing that some of them were confirmed by the name of out-lots ; also, map of the subdivision of Shawneetown into in-lots and out-lots, under the act of 1811; and maps showing out-lots of St. Louis, St. Charles, Carondelet, St. Ferdinand, New Madrid, Portage des Sioux, and Mine-a-Breton. The letters of instruction to the surveyor general were also offered; also, a letter from the commissioner of the general land office, directing the entry of Robert Duncan to be cancelled. Antoine Smith, a witness for defendant, in rejoinder, testified that he never knew the village authorities to exercise any control over the lots south of the village. ■ The defendant asked the following instructions, all of which were refused : 1. The jury are instructed, that the claims o£ the respective parties to the land in controversy must depend, mainly, upon the question, whether it was reserved for the schools by the act of congress of 18th . June, 1812. If not reserved for the schools, it was land liable, or which might be the. subject of preemption, and the decision of the register and receiver of the land office at the period when this claim was allowed, is final and conclusive. 2. If not reserved for the use of schools, the certificate, •showing payment, and the survey and the subsequent conveyances under which defendant claims, are sufficient evidences of title to protect the possession of the defendant, and to enable m to call in question the validity of the proceedings under which the plaintiffs claim. 3. The defendant claiming under a sale by virtue of a judgment in favor of the United States, these proceedings are an admission of title in Langham, under whom defendant claims, of such a right as will enable the defendant to call in question the validity and regularity of the proceedings under which the plaintiffs claim. This and the two preceding instructions require that the jury shall believe the certificates of the register and receiver, and the receipt, the.' judgment, execution and deeds to Langham, Evans and defendant, were duly executed. 4. In ascertaining whether the land was reserved for the use of schools, the jury will find, from the evidence, first, whether the land in controversy was a village or town lot within the limits of the old Spanish town of St. Louis, as it existed prior to or at the time of the transfer of the country from its former owners to the United States, or any part of such lot; second, if the jury believe it was not such village or town lot, or any part of such village or town lot, they will then find from the evidence, whether it was a common field lot or out-lot belong to the said town or village of St. Louis. 5. In ascertaining whether the land in controversy was a common field lot or out-lot belonging to the old Spanish town of St. Louis, the jury will find, first, whether the land in controversy was a lot, that is, whether it had been designated as such before the change of government; second, whether the land in controversy was subject to the regulations of the village authorities as were the common field lots, pommons and village lots belonging to said town or village. 6. If the jury shall find that the premises in question were no part of a town or village lot, out-lot, or common field lot, within the rules before laid down, they will find for the defendant. 7. In ascertaining the facts in the case, if the jury shall find that the survey designated map UX,55 and the setting apart by the surveyor general of the land marked B, have been made upon the assumption that the town, as claimed to be incorporated by the Court of Common Pleas, was the town or village referred to in the aet of 13th June, 1812, they will reject such surveys as founded upon erroneous data, and not made according to law : provided, also, they believe the old or Spanish town was altogether different in its exterior lines and boundaries from the said claimed incorporation. 8. If the survey and setting apart the land in controversy shall be found to be of land as within the town or village of St. Louis, and the jury shall find the same is without the town or village, then the survey and setting apart are to be rejected as any evidence of right in the plaintiffs. 9. The jury are instructed that the fact that various distinct parcels of land around St. Louis, have, since the passage of the act of 1812, been called out-lots in the reports of the recorder and in the surveys, is no evidence that the premises in question, or any part thereof, was an out-lot, unless it shall also appear that the premises in question was part of a series of allotments, known and designated as out-lots, belonging to said village before the ehange of government. 10. The act of congress of 13th June, 1812, did not require a continuous boundary, which should include the town, common fields, out-lots and commons, where either was separated from the other by intervening tracts ; in such cases, the act required separate surveys of each. 11. If a continuous boundary is required by the act of 13th. June, 1812, then the line should be so run as to make the eastern line of the commons the eastern boundary, so far as that line extends from south to north, and then connect the north-eastern corner of the commons with the old town by a straight line. 12. If the jury find from the evidence, that the land sued for in this action was not a town lot, village lot, or common field lot, at the time the American government took possession of Upper Louisiana, they will find for the defendant. 13. If the jury find from the evidence, that the land embraced in this suit was beyond the limits of the town of St. Louis, as said town existed under the French and Spanish governments, and that on the 13th June, 1812, it was not any part of the land inhabited, used or laid out for the purposes of said town or its inhabitants, they will find for the defendant. 14. If the jury believe from the evidence, that the land in question was, during the French and Spanish governments, outside of the town of St. Louis, and was, as late as 13th June, 1812, an unappropriated and vacant space beyond the regular limits of said town, they will find for the defendant. 15. That the act of congress of 13th June, 1812, entitled “ an act making further provisions for settling the claims to land in the territory of Missouri,” does not reserve, for the use of schools in towns and villages therein mentioned, any land which had not been made a town or village lot, out-lot or common field lot previously and by proper authority. 16. If the jury find from the evidence, that the survey of the out-boundary line of the town of St. Louis, under the act of 13th June, 1812, could have been run so as to include the out-lots, common field lots and commons thereto belonging, and exclude the land in this action sued for, -they will find far the defendant. 17. If the jury find from the evidence, that the land in question, before and on the 18th June, 1812, was a vacant space, not embraced within the streets of St. Louis, nor included among the regular lots of the village, and that it had never been a common field lot, then the said act of congress did not reserve it for the support of schools. 18. That the town or village lots, out-lots and common field lots reserved for the use of schools by the act of 13th June, 1812, and relinquished by the act of 29th January, 1831, to the inhabitants of the several villages therein mentioned, was a reservation to the villages, as they were under' the French and Spanish governments, and the act of the legislature incorporating the plaintiffs, to be elected by the inhabitants of the city of St. Louis, as' it stood incorporated at the passage of said act, is ineffectual to divest the trust fund from the ancient inhabitants of the village of St. Louis to the modern city of St. Louis, and the authority in the act, authorizing the election of the board of directors by other than the grantees, is null and void, and the plaintiffs cannot maintain this action. 19. The preemption to Robert Duncan conferred a valid claim under the preemption laws, and he, having settled on the land before any survey thereof was actually made, is entitled to hold it; and the persons deriving title from said Duncan have a title superior to the plaintiffs. 20. The court is requested to instruct the jury, that the paper offered in evidence by the plaintiffs, marked No. 2, and headed General Land Office, August 1st, 1845, and signed James Shields, commissioner, and addressed to “Register and Receiver, St. Louis, Missouri,55 does not invalidate or affect the entry of the land in question by Robert Duncan, under the preemption laws of the United States, and that the same is no evidence in this cause, and is excluded from the consideration of the jury. ' 21. The survey attempted to be given in evidence by the map marked “ X,55 is not of itself any evidence that the land in question, or any part thereof, was reserved for tbe use of schools by the act of congress of 13th June, 1812. 22. The court is requested to instruct the jury that an out-lot and common field lot, as mentioned in the act of congress of 13th June, 1812, mean the same thing. 23. The document, purporting to be an assignment, or setting apart of the land in dispute by the surveyor general, for the use of schools, shows no title in the plaintiffs, without other evidence, establishing the fact that the said land belongs to the class reserved by the act of congress of June 13th, 1812. 24. The papers offered in evidence by the plaintiffs, purporting to be evidence taken before Recorder Hunt, are no evidence in this case. 25. The copy of the record from the Court of Common Pleas, purporting to erect a corporation, is no evidence of any such corporation, the court not having any jurisdiction to create it. To this refusal to give the instructions asked, defendant excepted. All instructions asked by plaintiffs were refused, and the court gave the following, to which defendant excepted : “ The court is asked to instruct you, that the claims of the respective parties to the land in controversy must depend mainly upon the question, whether the land was reserved for the use of schools by the act of 13th June, 1812. In this view, the court concurs ; but, without advising you more at large upon that subject, as requested, gives the case the direction indicated by two of the propositions submitted, one on either side, designed to effect a comparison between1 the titles of the parties. These are as follows : on the part of the defendant, ‘ that the preemption to Robert Duncan conferred a valid claim under the preemption laws, and that, he having settled upon the land before any survey thereof was actually made, is entitled to hold it, and that the persons deriving title from said Duncan have a title superior to the plaintiffs.’ Ondhe other hand, it is insisted that ‘ the title of the plaintiffs, under the act of the surveyor general, designating and setting apart the ground in controversy to the plaintiffs, is superior to the title of the defendant under an entry with the register and receiver of the land office.’ And of this opinion is the court. The jury is therefore instructed that, upon the titles exhibited in testimony by the parties, the plaintiffs are entitled to recover. “ The court adds, that th& defendant has the right to impeach the title of the plaintiffs, thásame, and to the same extent, as if the entry of Duncan, jinper which he claims, had not been vacated by the commissioner of the general land office. And the court further instructs the jury, that no evidence has been adduced on the part of the defendant, competent to invalidate or overthrow the plaintiffs’ title ; therefore the jury should find for the plaintiffs.” There was a verdict for plaintiffs, and defendant brings the case here by writ of error. I. Cancelling the entry by Duncan did not divest his right. 9 Mo. 828. Wilcox v. Jackson, 13 Pet. 498. 9 Pet. 117. 12 Mo. 12. 31. The instruction given by the court is erroneous : 1. In asserting that no testimony had been given by the defendant, competent to impeach or invalidate the plaintiffs’title. 2. The survey of the out-boundary line, ‘and designation for use of schools, do not, as against defendant possessing under a sale from the United States, make a prima facie title. 3. If the survey and designation are presumed correct, so also are the acts of the register and receiver in allowing the pre-emption, and of the surveyor in locating it as a fractional section ; so that there is presumption against presumption, thus leaving the matter in equilibrio. Hammond v. Schools, 8 Mo. 65. Trotter v. Schools, 9 Mo. 69. ’ Eberle v. Schools, 11 Mo. 247. Acts of 26th May, 1824, and of 27th January, 1831, supplemental to act of 13th June, 1812. 4. The out-boundary line raises no prima facie case, inasmuch as there is evidence impeaching it, indeed showing positively that it was wrong, in not embracing the Grande Prairie, Prairie des Noyers and Cul de Sac common fields. Like a witness, being discredited in part, its credit is lost. 5. But there is evidence tending to prove that the out-boundary should have been so run, as not to have embraced the piece of land in question. 6. There was evidence tending strongly to prove that the land in controversy never was a village or tpwn’’ lot, common field lot, or out-lot, prior to December 20, ^SOB, nor even down to, and after the passage of the act of Juni^lS, 1812. 7. But even if the out-boundary line and designation and setting apart make out a prima, facie case, still there was some evidence touching the legality of the same, which ought to have been left to the jury. Those acts of the surveyor and commissioner are not conclusive. Eberle v. Schools, 11 Mo., opinion of Judge Napton at pp. 264 and 266, and of Judge Scott, at p. 261. In 13 Pet. 498, the United States Supreme Court indicates how far reliance is to be placed upon the acts of the public land agents ; that their acts are not binding in regard to the fact, whether the land was public land, or whether it was of the description which would authorize their act appropriating it; that those facts are open to inquiry in courts of justice, in cases involving the title to the land. 8. The testimony of Cerré, Paul, Cózzens, Simpson and the old map of the town, and other maps shown on the trial, make it appear, with reasonable certainty, that there were no town or out-lots between the Cerré or Soulard plantation, on the south, and the Chou-teau Mill tract; on the north, and the Mackay tract on the west. There is no evidence from the land records of the country, or oral, tending to show that there ever was a lot in that space. The town, as incorporated in 1809, or as- it existed under the American government, is not the town referred to, when the act of congress speaks of town or village lots, out-lots, or common field lots, but the Spanish town. The lots intended by the act were such as were created before the change of government. 11 Mo. 265. The act of June 13th, 1812, shows it in its caption and provisions ; and this act is one of a series of acts for the relief and benefit of the people of the newly acquired territory. The words in the first and second sections are the same. If, therefore, the first confirmed only lots existing under the Spanish government, the second reserved only such. Vacant, unappropriated spaces were neither confirmed nor reserved by that act. There was no authority to make lots or out-lots or common field lots, after the change of government, until the act of June 13th, 1812, was passed. The entry of Duncan was regular and gave title, as against the United States ; so that the instruction is not sustained on the ground that the defendant’s title was void on its face. In fact the court admits this in its instructions. Acts of congress of May 29th, 1830, April 5th, 1832, July 14th, 1832, and June 19th, 1834. U. S. S. pp. 420, 508, 603. Pettigrew v. Shirley, 9 Mo. 687. The effect to be given to the survey of the out-boundary line of St. Louis, being of great importance in these cases of public school property and claims, I subjoin several observations thereon. 1. The act of congress requiring it, gives no effect to it, except to limit and describe the territory within which the £ ‘lots” are granted or reserved, by that act. It does not enact that all the lots within that boundary, are hereby granted for the use of schools, and this court, in the case of Hammond v. Public Schools, 8 Mo. Rep. 65, held that the reservation gave no vested rights. 2 U. S. S. 748-49-50, act of congress of 13th June, 1812. 2. The act of May 26th, 1824, 4 U. S. S. 65, provides for making proof of inhabitation and cultivation as to lots of individuals, and size, &e., of the lots, “ so as to enable the surveyor general to distinguish the private from the vacant lots,” &c. This does not give title or make the survey evidence. The second section requires the surveyor then £ £ to survey, designate and set apart to said towns and villages respectively so many of the said vacant town or village lots, out-lots and common field lots for the support of schools,” as the President should not have selected for military purposes, and not to exceed one-twentieth of the whole land included in the general survey o£ each town, &c. But this section fails to state what effect this should have. It does not enact that it should give title. 3. The act of 27th January, 1831, 4 U. S. S. 435, merely gives to the respective towns the title of the lots reserved for the use of schools in the act of 13th June, 1812 ; but makes no reference to the survey of the out-boundary line, and gives it no effect whatever. 4. So that it appears that there is no statutory provision whatever, expressly or impliedly making this survey a title, or even any evidence of title. 5. On what grounds of principle, then, is it prima, facie evidence of title ? The proprietor of land sells a piece, and makes his deed, and surveys the part sold. This, perhaps, as between him and his grantee, would be prima facie evidence against him, that the survey and location was the piece contained in his deed. It is in the nature of a formal admission on his part. It may be, perhaps, prima, facie evidence against any subsequent purchaser from the same grantor, as such purchaser has knowledge of the previous deed and location, and he takes under the same grantor, and only the grant- or’s rights, and stands in his shoes. But how can such survey be prima facie evidence against a previous purchaser from the same grantor? And especially, if such previous purchaser’s claim had been previously surveyed for him by the grant- or? When the rights of third persons are concerned, a surveyor cannot affect them by a survey. 9 Mo. Bep. 603. 6. This doctrine of prima, facie evidence of title, given to an official survey, seems based upon the assumption, that the land was of the character required to authorize the survey, and here lies the whole dispute. Was it a vacant lot, or was it a lot at all, of any description? If you proceed first and show that it was a town lot or out-lot, then perhaps the official survey of it would be held prima facie evidence of its being a vacant one, though even that I deny. 7. The same law of evidence is to be applied to this class of cases as to others. If an individual sues for a town lot, it will not suffice to merely show an official survey of a confirmation to the original claimant, and then derivative title to the party, and why not? Because he must show title, and after that is shown, the official survey of the claim is prima facie evidence of size and location. The survey was not made, nor intended, by the law, to be in lieu of all title. So, he who claims under the act of 18th June, 1812, must prove title by proving cultivation or inhabitation, prior to 20th December, 1808 ; but this is not proved by production of the survey of the lot to him, as confirmed under that act. 8. Now the far greater portion of the lots and out-lots was private property, made so by the first section of the act of 13th June, 1812. The presumption, therefore, as to any given lot, would be, that it was private property, and not one of the reserved lots. In mating the survey, the officer was not dealing with the public domain. 9. The title of the public schools depends upon the same fact as that of. individuals ; that is, on the fact that it was a lot under the Spanish government. The official survey of the lot for an individual does not prove this fact; and how can it prove the same for the public schools, unless you have one set of laws for individuals and another for this corporation. 10. Nor does it make any difference that, in the further proof, the individual has to prove an affirmative fact, i. e., inhabitation or cultivation ; and the public schools, in many cases, have to prove, or give primafacie evidence of a negative, to-wit: that the lot never was inhabited or cidtivated. The one is as easily done as the other, and if it were not, yet the fact, whether a town lot or out-lot is an affirmative fact, on which both titles depend. That fact is necessary to the title of both. Why then make the survey prove it in the one case, and not in the other ? 11. The truth is, that survey is evidence of boundary and location, but never of title ; and in principle, it never should be. Survey is only the ascertainment and designation of extent, size, shape and boundaries o£ something previously existing. It does not itself create the thing. A lot or tract of land exists previously, as such lot or tract, and the survey is merely the marking out its extent, shape and limits ; and so far as doing this, there is no objection to holding an official survey to be prima facie evidence of what it purports to be ; that is, of the boundaries of a previously existing lot or tracts But to hold that it goes far beyond this, and establishes the previous existence of such lot or tract, is to give an effect to it not warranted by the law, nor by the nature of such an official act. In the present case, the court below decided that the mere survey and setting apart proved that the land was a lot or out-lot under the Spanish government; and that, too, when it was a mere ex parte act, and when other officers of the government,' equally trustworthy, had previously decided officially, that it was not a lot or out-lot.- 12. It should be observed that the titles here do not depend on the survey, but on previous grants — grants made to individuals or to the public for the use of schools. So that the surveys in question are surveys of previously existing lots. Two matters are left to the department: First, whether a piece of land was a town lot, under the Spanish government; and, second, where is its true location, and what its size, shape and boundaries. The survey proper is the ascertainment of the last mentioned points. But it may be said that the department has acted, in designating and setting apart the lot, through the surveyor. But how can this alter the case ? The principle is the same. Because a man, whether surveyor or commissioner, says that the title of this lot is in the schools, when its title, if it be a lot, had emanated years before, and when the question, whether it be a lot, is undetermined by any previous action of government or any judicial tribunal — that because such an assertion of title is made ex parte by the commissioner or surveyor, the claimant in possession is to be turned out, seems advancing to an alarming extent, in giving effect to acts of government officials. 13. Let it be remarked tbat all the town lots and out-lots. had been disposed o£ long since, and granted by acts of congress, and, of course, the titles -of them all vested in the grantees years before these surveys were made. The lots of individuals were granted to them in 1812, and the full legal title then passed and vested, as the Supreme Court of this state and of the United States have always held. The lots not so granted then were granted in 1831, and the legal title of them passed from the United States and vested in the several -towns, so that the United States had conveyed away all the town lots and out-lots of St. Louis, before these surveys were made. Nothing existed there but private property ; the proprietary interest of the government had ceased. How can the government, after this, authorize an officer to determine whether a particular lot belongs to A. or B. ? The function of the government has ended, and it belongs to the courts to say who has the best title and where the respective boundaries of the lots are. If the government chooses to convey its lands through a section of country by one general act, without previous survey, how does it retain the right to interfere afterwards among the grantees, by its agents or ministerial officers, and prefer the title of one grantee to that of another ? 14. See the great injustice of such a doctrine. The surveyor sets apart and surveys for schools a private lot. The owner a year or two ago could have proved his title by living witnesses, that is, he could have proved possession of it prior to 1803. But those witnesses have died. Of course the public schools, their survey being title, now take the lot. Making their survey prima facie evidence of title, as it is, if you make it prima facie evidence of a vacant lot, places it in the power of this corporation to disturb a great many proprietors, and do a vast deal of injustice, and its power in this respect is increasing daily. 15. The fact that the surveyor or commissioner is a sworn officer, doing his official duty, makes no difference. In making those surveys, he was running boundary lines between adjacent proprietors, and that too, when tbe law does not declare that it shall have any effect; and how can the United States interfere with titles here, which have already emanated to individuals, and by law declare the extent of their rights ? 16. Nor can it be said with truth that, in making the grants, they reserved the right of fixing boundaries thereafter. Their act merely makes it the duty of certain officers to do it; and it should have been done while the United States were interested ; but it was not done. The government granted away all its interest and ceased to own any estate, and in that grant made no reservation. I. The acts of congress of June 13th, 1812, 26th May, 1824, and 27th January, 1881, together with the designation of the land in controversy by the surveyor general, constitute a title in the public schools, conclusive on the United States, equivalent to a patent, and binding on all not having a paramount title at the time of designation. The title of Kissell is a mere entry, not perfected by a patent ; and is inferior in dignity, and must yield to the title of the public schools. Bagnell v. Broderick, 18 Pet. 436. Wilcox v. McConnel, ib. 498. Mackay v. Dillon, 4 Howard, 421. Les Bois v. Bramell, ib. 449. Menard?s heirs v. Massey, 8 Howard, 293. Trotter v. Public Schools, 9 Mo. 69.. O’Hanlon v. Perry, ib. 808. Eberle v. Schools, 11 Mo. 249. The foregoing cases establish the propositions that an entry is inferior in dignity to a patent, and that a grant by congress is of equal validity with a patent. The designation by the surveyor general, in pursuance of the act of May 26th, 1824, has precisely the same effect as if the designation had been contained in the body of the act. The defect in the act of 1812 was, that no means were provided for ascertaining the lots reserved. This defect was supplied by the act of 1824, and the duty was delegated to the survey- or general of designating and setting apart the vacant lots. This duty, when performed, must, from its nature, bind the United States, and all their title in the land designated ; and, taken in connction with the act of 1881, is effectual to pass the fee in the very land mentioned in the designation of the surveyor general. Accordingly, in Les Bois v. Bramell, where the effect of a designation of the St. Louis commons, under the same act of 1824, was considered, the United States Supreme Court decides that, “ the laws [of 1812, 1824 and 1831] and the acts done by the United States in pursuance of them, we suppose, made and located the commons title as effectually as a patent could have done.” This decision goes to the very point of the present case. See also the language of Judge Catron in Menard’s heirs v. Massey, as to the effect of the survey of a confirmed claim. The language of those judges who have advanced opinions adverse to the title of the public schools is not materially different from the foregoing, as to the effect of a survey. See opinion of Judge Tompkins in Trotter’s case, and of Judge Scott in Eberle’s case. The necessary conclusion from these statements of the effect of a survey is, that the United States and their title are bound by the survey, and consequently the public schools occupy the same position as the United States, in respect to a party standing on a mere entry. The rights of the United States in this respect appear in the above cited caso of Wilcox v. McCon-nel. The contrary conclusion involves a plain logical absurdity, in this, that the title of Kissell, which is confessedly inferior to that of the United States, becomes superior to that of the public schools, which, in its turn, is admitted to be superior to that of the United States ; and practically, there would be no controlling title to the land in dispute, for Kissell would take it from the public schools, the United States from Kissell, and the public schools from the United States. II. If the designation by the surveyor general were regarded merely as 'prima facie or presumptive evidence that the land designated was within the grant by congress, still there was no testimony adduced by tbe defendant below, competent to overthrow this 'prima, facie, title, and tbe jury was properly instructed to find for tbe plaintiff. See Kelly v. Jackson, 5 Pet. Rep. 622. Tbe defendant below introduced much testimony, tending to show that tbe land in dispute was without tbe Spanish village, and not a part of the common fields in recent times. Farther than this be did not attempt to go, and, for aught that appeared, tbe land was an out-lot belonging to St. Louis, and properly assigned to tbe public schools by tbe surveyor general. III. There is ample evidence on the record that tbe land in controversy was embraced within tbe out-boundary directed to be run by tbe act of 1812 ; and that it was properly designated and set apart for tbe public schools. Firstly. The town mentioned in the act of 1812, must be taken to be tbe one existing and as it existed at tbe date of tbe act. 1. This construction is tbe natural one. 2. It is altogether more consistent with a convenient prac-: tical execution of tbe law. 3. It is plainly suggested by tbe proviso to section second of tbe supplemental act of 1824. 4. It has uniformly been adopted and acted on by tbe beads of tbe land department of tbe government. Under this construction, tbe present controversy is at an end ; for it is not questioned that tbe land in dispute lies within tbe corporate limits of tbe St. Louis of 1812. Secondly. But if tbe act of 1812 be construed, as referring to tbe town as it existed prior to 1803, tbe result will still be tbe same ; for tbe land was clearly proven to be a part of tbe Spanish town and its dependencies. 1. It was part of tbe ancient commons of St. Louis, and continued to be claimed and used as such, till it was severed from tbe great mass of commons land by tbe intervening grants. Tbe testimony of all tbe witnesses contained in tbe record, concurs in this, that in early days tbe commons extended quite round the village, embracing all the lots along the river, and also the land lying between Third street and the common fields. Several ancient deeds and grants will be found in the record, containing recitals and descriptions to the same effect. 2. The claim to this land, as commons, was abandoned as early as 1806, as appears by Mackay’s survey, filed with the commissioners. And the land was not confirmed as commons, as is conclusively shown by the official survey of the commons. 3. Lying within the Spanish town, as it existed prior to 1803, the land in dispute was properly embraced within the out-boundary run by the surveyor general; and, being vacant, was properly designated for public schools, on the principle' decided by this court in Trotter v. Public Schools, re-affirmed by a part of the court in Eberle v. Public Schools, and asserted by Justice Catron in Machay v. Dillon. The court is referred to the case of .Mobile v. Esglava, 16 Pet. 234, in which it was held that.a grant of lots, by act of congress, was effectual to pass land not subdivided into lots. See also to the same point, Dunn v. City Council, Harp. S. 0. Rep. 189. 4. Even taking the term lot in the strict and technical sense-adopted in the case of JVewman v. Laiuless, 6 Mo. Rep., the land in question was a lot; for it had fixed and definite boundaries by the lines of Soulard’s, Chouteau’s and Mackay’s surveys, all of which were run by Spanish authority. • 5. It was an out-lot belonging to St, Louis in point of local Situation ; for it was in close proximity to the village, carved-out of the aneient commons, and the first of a series of lots, the last of which was confirmed as an out-lot, eo nomine. The first section of the act of 1812 describes out-lots as “adjoining” the town .or village, from which it would seem that, in determining what is an out-lot, local proximity is to be regarded. See the plat of Shawneetown, prepared under the act o£ 1811, and showing the contemporaneous construction, by the land department, of the term out-lot. 6. But it was an out-lot of Spanish St. Louis, in point of jurisdiction and authority; for it lay along' a public road, which was under village control, and was itself subject to the regulations of the village syndics. 1. The United States, as the great proprietor and only lawgiver over the subject, can dispose of its lands to whom it pleases, acting by what agencies and giving what evidences of title it pleases. 2. As the United States often grants lands to many persons in group, and embraces many classes of claims and interests in one compendious act, its grants of such character ought to be largely and liberally construed, to advance the known objects of the government, and ought not to be restricted by any merely technical rules, which possibly may apply to the contracts of private persons. 3. Assuming these principles, and considering the relations of the people of Louisiana to the United States, I submit that the act of congress of 13th June, 1812, (with its two supplements, of the 26th May, 1824, and 27th January, 1831,) disposed of all the interest and title of the United St'ates, within the Missouri towns mentioned in the act. 4. As to the towns and villages mentioned in the act, they are described only by their names, and it is quite immaterial to the purposes of this suit, whether they did or did not exist in Spanish times. If they did, then they might have had inhabitants capable of enjoying the benefits of the first section of the act — the grant of titles to the possessors of private lots. If they did not, still, the town being in existence at the date of the act, the reservation of unappropriated lots for the support of schools therein, in the future, is perfect, without reference to past time. 5. It is a mistake to suppose that a Spanish town means only a collection of dwelling bouses and shops on lots and squares regularly laid out, wi,th streets marked and established. In superficie, that is a very small part of a Spanish town, as known in history and recognized by the United States Supreme Court, in 12 Pet. Rep. 441, Strother v. Lucas. And see White’s Compilation, yoI. 2, Appendix I, p. 86. And the aet of 1812 itself plainly declares that out-lots, common field lots and commons are parts of the town, by directing the out-boundary of the town to be so surveyed as to include them. 6. The word lot is generic, and no more implies any particular size or shape or defined boundaries, than does the word tract; it is not used in contradistinction to farm, as adverse counsel suppose in argument. On the contrary, hundreds of the old inhabitants had their farms upon the out-lots and common field lots. 7. The word lot, as used in the first and second sections of the act of 1812, may and ought to be construed differently. Individuals could claim, under the first section, such lots only (whether in or owf-lots) as they had “ inhabited, cultivated or possessed,” and therefore could prove ; and, by the supplemental act of 1824, they were required to prove the fact of their inhabitation, cultivation or possession of the lot, “ together with its extent and boundaries. But the lots reserved for schools, by the second section, were vacant, unclaimed, unsurveyed, unknown in size, shape and boundary; and for that very reason, reserved by a parental government, for the education of the people. The court will take notice of the historical fact that there were no surveys of the King’s domain in Upper Louisiana. So much as to the construction of the Statutes. We will now consider the acts of the officers under those statutes. 8. The survey of the out-boundary of the town is a public survey, about which no private person has any right to make a question, because it is not, and' does not purport to be a survey of any man’s land. It is simply the establishment of a municipal boundary, by authority of the government. It is final and absolute, as to individuals, the land office and the courts. It was not made under executive orders (as other surveys, and especially those made under the supplemental act of 1824 are,) but by command of congress itself, in the terms of the act of 1812, addressed to the surveyor directly, and not through the general land office. If the court should think the survey wrong, still it has no. power to correct it: the court must take it for good, as it is, or reject it altogether, as a nullity. Therefore, although we may think it wrong, in this or that particular, still, as no one is authorized by law to review and amend it, it must stand as it is, till congress shall think fit to direct a change. That the survey is prima, facie evidence, is beyond dispute, having been over and over so determined by this court. See the cases of Hammond, of Trotter and of Eberle. 9. The act of the surveyor, under the direction of the commissioner of the general land office, assigning the particular land to the school board, is a perfect evidence of title, as far as the United States could give title — as good as a patent — . and, like a patent, implying the fulfilment of all prerequisites, and dispensing with the proof of any. It may safely be assumed, as a general truth, that hardly admits of exception, that the last evidence provided by the government, of its grants of lands, must, in its nature, be final and conclusive. Not conclusive that the government has a right to the thing granted ; but that, having the right, the act done is perfect to convey the right of the government. See 10 Pet. Rep. 781, New Orleans v. United States. In most cases of grants of land by the United States, patents are provided for by law. But there are large classes of grants, in which no patents are provided for by law, and none in fact issued. Patents are neither required nor issued for the vast number of lots confirmed by the first section of the act of June 13th, 1812.