Smith v. City of St. Louis

Scott, Judge,

delivered the opinion of the court.

Our duty in the present ease only requires of us an examination of the title of the plaintiffs, who are appellants here seeking to deprive the city of a lot of ground of which she is now possessed. If, under these circumstances, the plaintiffs fail to show a right to recover, it is obvious that the defendant cannot be disturbed and is not bound to show her title.

From the view we take of the law, we are confined to the survey made under the confirmation, through which the plaintiffs claim, in order to ascertain the limits and extent of their rights. In the case of Menard’s heirs v. Massey, 8 How. *40 303 , the Supreme Court says, “ when a survey is made and the field notes returned to the surveyor general’s office, it was conclusive evidence, as against the United States, that the land granted by the confirmation of congress was the same described and bounded by the survey, unless an appeal was taken by either party, or an opposing claimant, to the commissioner of the general land office. This consideration depends on the fact that the claimant and the United States were parties to the selection of the land, for, as they agreed to the survey, they are mutually bound, and respectively estopped by it.”

This being so, and the survey of the confirmation bounding it on the east by Main street, as surveyed by the United States on the 15th of September, 1835, it is not conceived that there can be any serious controversy in relation to this matter. There is no doubt that many concessions of lots in St. Louis were granted under the Spanish government, with boundaries fronting on the river. Auguste Chouteau, in 1825, filed among the archives of the city of St. Louis a plat of the said city, as it was designed by him as its founder. He did not pretend, however, that the plan was made in virtue of any public authority. This plat shows that there was a vacant space left between the river bank and the lots fronting on Main street on the west. In June, 1810, the first board of commissioners for adjusting land titles in Missouri, while acting on a claim of Julian Papin Benito, which was for a lot back to the river from another lot adjoining Main street, says, “it is the opinion of the board that this claim ought not to be confirmed. This space has been termed the bank of the Mississippi. The lots between the Main street and the Mississippi being 150 feet only, as appears by the plat of the town of St. Louis, recorded by Pierre Chouteau and others in behalf of the inhabitants of said town, as also in all the old concessions given for said lots ; and it appears from said plat that a nearly similar space of ground exists between the Mississippi and all the other lots that are situated between the Mississippi and Main street.” As these facts are related merely as a Matter of history, the im *41 portance due them, whatever it may be, is not diminished by the consideration that the claim referred to was afterwards confirmed by Recorder Bates.

The case of Mullanphy’s Ex’r v. Daggett & Price, 4 Mo. Rep. 343 , does not affect the matter under consideration. That was an action of trespass quare clausum fregit, for injuries done on the Yosti concession, which, though bounded on the east by the river, was situated north of the old Spanish town. At the time of the commission of the wrong for which the suit was brought, it was included within the limits of the city, and the court held that the owner had such an interest in the bank of the river as would sustain the action, though the right of the public to the use of it, for some purposes, was recognized.

The case mainly relied on by the plaintiffs is that of Morgan v. Livingston, 1 Con. Lou. Rep. 451. Whatever may be the law in relation to the rights of riparian owners, under the French, Spanish or common law, we do not conceive that it affects this suit, as the boundary is not the river, but a street in the city of St. Louis. It appears that, by the Spanish law, although a public road was between his land and the river, a riparian owner was entitled to all alluvial accretions, for the reason that, by the law of Spain and the conditions of his grant, he was bound to the confection and the repair of the road, its ditches and bridges, and the levee ; and if any part of the soil, which was covered by them, was carried away by the stream, the riparian estate would yield a quantity of land equal thereto. The bank of the river was to the riparian owner, alternately, an onerous and a beneficial accessory. This principle, it seems, was applicable to private riparian property, laid off into town lots merely by the act of the owner, without any authority of law. But, in towns erected by legal power, the lots were not charged with any of the burdens attending rural riparious estates ; the levee, road or street being made and kept in repair at the joint expense of the owner of every lot in the city.

St. Louis was first incorporated on the 9th of November, *42 1809, by the Court o£ Common Pleas for St. Louis county, under and by virtue of the act of the territorial legislature of June 18th, 1808, with limits including the block in controversy, and with authority to erect and repair bridges, and to cause the streets to be cleared and repaired by the inhabitants thereof. As the claim of the plaintiffs was not a perfect one under the Spanish government, its confirmation and the ascertainment of its boundaries was a duty assumed by the United States. That duty has been performed, and the plaintiffs have accepted from the government a boundary which limits them to a street in an incorporated town. Now, although their original grant or concession was to be interpreted by the laws of Spain, and although it may have called for the river as a boundary, yet, having accepted as a boundary a street in an incorporated town, they cannot now fall back on the terms of their original concession.

In coming to this conclusion, we do not wish to be understood as intimating the opinion that the plaintiffs’ eastern boundary, from the evidence, was not properly located on Main street. We do not go into an examination of that question. Nor do we wish to be understood as expressing any opinion in relation to the rights of riparious owners of lots in the city of St. Louis, nor as intimating that the town of St. Louis, in regard to riparian proprietors, stood on no other ground than a private grant, bounded by a water-course, under the Spanish government. We are not aware that the Spanish law in relation to riparian grants on the Mississippi, in Louisiana, has ever been considered as obtaining in Missouri.

There is a strong similarity pervading the French, Spanish, and common law codes in relation to alluvial accretions. Bach system may have its peculiarities, but the main features of them nearly resemble each other. It is certain that the United States never made any grant of lands encumbered with the conditions annexed to grants of land on the Mississippi under the Spanish government. In the states of the Union, that gov *43 ernment would Have no sucb authority, as it would be a mere police regulation, outside of its constitutional powers.

From what has been said, it will appear that the admission made on the trial that all the land in front of that which is embraced within the lines of block 42, including the present Main street, has been formed by accretion since 1840, cannot affect the judgment.

Judge Ryland concurring, the judgment will be affirmed.