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

1. Lands and. Land Titles — decessions—Riparian Rights. — A lot in a town or village may be entitled to the riparian right of accretions, the right turning upon the question whether or no the lot had a front upon the river. See Jones v. Soulard, 24 How. 51; Smith v. Pub. Schools, 30 Mo. 301; LeBeau v. Gavin, 37 Mo. 556. 2. Evidence — Tax Receipts — Hearsay—Limitations.—Evidence as to the payment of taxes is admissible in suits for the possession of land for the purpose of showing adverse possession, or the extent and boundaries of the land possessed. 8. Practice — Trials—Exceptions.—Where objections are made to the admission of evidence, the bill of exceptions must show the reasons upon which the objections were founded. 4. Practice — Trials — Evidence — Discretion. — The Supreme Court will not review the discretion of the inferior court in admitting evidence out of its proper order. 5. Evidence — Hearsay—Public Rights. — Tradition, reputation and hearsay are admissible to prove the extent, character and existence of public rights as regards the location and boundaries of things of a public nature, as of a highway, street, or road.

Appeal from St. Louis Circuit Court. The court gave the following instructions on behalf of plaintiff: 2. The jury are instructed that the calls for the Mississippi river in the deeds or conveyances read in evidence from one private individual to another private individual, do not give or create riparian rights. 3. The eastern boundary line of the corporation of St. Louis, of 1809, read in evidence, and the eastern line of the out-boundary of December 8, 1840, read in evidence, both extend to the eastern boundary of the State of Missouri, which is the middle of the main channel of the Mississippi river. 4. If the jury believe from the evidence that a street, or tow-path, or pass way, or other open space, was permanently established for the public use between the Mississippi river and the most eastern row of lots or blocks (of which block 44 was one) in the former town of St. Louis when said town was first laid out, or established, or founded, then and in that case the owner or claimant of said lots or blocks are not riparian proprietors of the land between said lots or blocks and said river. 5. If the jury believe from the evidence that a street, or tow-path, or'passway, or other open space, was permanently established for the use of the public between the Mississippi river and the most eastern row of lots or blocks (of which block 44 was one) in the former town of St. Louis when the town was first laid out, or established, or founded, and that the river after that time washed away the land so that the western edge or bank thereof was west of said road, or tow-path, or pathway, or other open space, and west of ■ the eastern boundary line of said lots or blocks, and that afterwards the river receded so that the present western edge or bank thereof is no further west than when said town was first laid out, established or founded, the owners of said lots are not entitled to riparian rights. 6. If the jury believe from the evidence that a street, or tow-path, or passway, or other space, was permanently established for the public use between the Mississippi river and the most eastern row of lots or blocks (of which block 44 was one) as said town existed prior to December 20, 1803, then and in that case the owners or claimants of said lots or blocks are not riparian porprietors of the lands between said lots or blocks and the said river. Plaintiff also asked the court to give the following instructions to the jury, which the court refused to give: 1. If the jury believe from the evidence that block 44 in the former town of St. Louis was, by a United States survey, surrounded on all sides by streets, and that said survey has from the time of the recording and approving of the same stood as an approved survey without appeal, the owners of the lot in said block thus surrounded are estopped from claiming any ground beyond the street which is by said survey made its eastern boundary. 2. The jury will find for the plaintiff if they believe from the evidence that all of the maps, plats, surveys, deeds, and other documents and instruments read in evidence by the plaintiff are genuine; and that the premises in controversy are not within the boundaries of any land confirmed to any person or persons, but are within the boundaries of the corporation of 1809, read in evidence, and within the out-boundary of December 8,1840, read in evidence, and within the school assignment, being survey No. 400, read in evidence, and within the boundaries of the land described in the deed from the City of St. Louis to the plaintiff, read in evidence. 3. All streets, wharves, avenues, alleys, passways and other thoroughfares in towns and cities are presumed to have been established for the public use, and those who wish to show the contrary must prove it. If, therefore, the jury believe from the evidence that there was a street, tow-path, pathway, or other open space, in the former town of St. Louis, between the Mississippi river and the more eastern row of lots or blocks (of which block 44 was one), such street, tow-path or other space the jury will presume was established for the use of the public, and not affected, impaired or interfered with by riparian rights, unless the contrary be proved to their satisfaction. 4. If the jury believe from the evidence, that, in accordance with the plan of the former town of St. Louis, as the same was first laid out, established, or founded, there was between the most eastern row of blocks and the Mississippi river from Plum street to Hazel street, a space of ground left for a street, road, tow-path, or levee, dedicated to any other use common to the inhabitants thereof, or to the public use, then the lots in sai,d blocks are not riparian, and not entitled to alluvion. 5. If the jury believe from the maps and plats, and all of the other evidence in the case, that the Spanish authorities intended to leave a space from Plum street to Hazel street in the former town of St. Louis, between the most eastern tier of blocks (of which block 44 is one) and the Mississippi river for a continuation of Main street, or Fourth street, or for any other public purpose, then the lots in said block have no riparian rights. 6. The jury are instructed to disregard all parol evidence tending to establish the boundary of a lot varying from that of other lots in the same tier, if they are satisfied from all the evidence in the cause that such uniformity was a part o£ the plan of the Spanish town of St. Louis. 7. The jury are instructed that, as a question of law, the owners of lots in the town of St. Louis, as said town existed prior to December 20, 1803, have never had any riparian rights. 8. If the jury believe from the evidence that the defendants claim under a confirmation, and that the survey of such confirmation does not call for the river as a boundary, they are stopped by said survey, and cannot claim any rights as riparian proprietors. 9. If both the confirmation and surveys of the United States to private individuals for the most eastern row of lots west of the premises in controversy do not call for the Mississippi river as a boundary, then the owners of said lots are not entitled to said premises as riparian proprietors. 10. If the jury believe from the evidence that prior to December 20,1803, there was a road or passway between the front row of lots in the former town of St. Louis and the Mississippi river; and the river after that time washed away the land, so that the western edge or bank thereof was west of said road or passway, and west of the eastern boundary line of said lot; and that afterwards the river receded, so that the present western edge or bank thereof is no farther west than where it was prior to December 20,1803, the owners of said lots are not entitled to riparian rights. 11. As the concession, confirmation and survey to Louis Ride or his representatives call for a permanent road on the east, neither the said Ride or his representatives nor any one claiming by, through or under him or them, can claim any riparian rights. 12. It is only the acts and proceedings of the Spanish Government which have been confirmed by the United States, or the acts and proceedings of the United States themselves, that can give or create riparian rights, or any other rights, in or to the land in dispute. No act or proceeding of the corporation of the City of St. Louis, or of any private individual, can give or create any such right or rights. 13. The whole or any part of a Spanish concession which has not been confirmed by the United States, does not grant or convey any right, titlo or interest in or to any lands. 14. The defendant in this cause has set up no title in himself, or those whom he represents, or under whom he claims, but seeks to maintain his possession as a mere intruder by setting up title in third persons with whom he has no privity. In such a case, it is incumbent upon the party setting up the defence to establish the existence of such an outstanding title beyond all controversy. It is not sufficient for him to show that there may possibly be such a title ; if he leaves it in doubt, that is enough for the plaintiff. Where the plaintiff has a prima facie good title, he has a right to depend on such title, and is not bound to furnish any evidence to assist the defence. It is not incumbent on him negatively to establish the non-existence of such an outstanding, title, but it is the duty of the defendant to make its existence certain. To the refusal of the court to give said last mentioned instructions, the plaintiff at the time excepted. The court gave the following instructions to the jury at the request-of the defendant, viz.: 1. If the jury find from the evidence that prior to and on the 20th December, 1803, Madame Charleville inhabited, cultivated and possessed a lot of ground in the town of St. Louis, being part of the present city block 44, and bounded on the west by the present Second street, on the north by the present Lombard street, on the east by the Mississippi river, and on the south by the north line of the lot of Leveille, which was parallel to said Lombard street; that said Madame Charleville claimed title to said lot, and she and those deriving title under her continued to inhabit, cultivate and possess said lot down to the 13 th June, 1812; that river accretions have been made to said lot along its eastern line, and the premises sued for are a part of such accretions lying between the north and south lines of said lot extended to the river in its present position, — then the plaintiff cannot recover, and the jury must return a verdict for the defendant. 2. The circumstance that a passage-way or tow-path existed along the river bank will not affect the right of the parties, if the jury believe that the same was kept up at the charge and risk of the proprietor of the lot; that it followed the changes of the river going to the east or west as the river receded or encroached upon the lot, and that the eastern enclosure of the proprietor was advanced or set back with such changes. 3. If the jury believe from the evidence that the claim confirmed to and surveyed for the representatives of Louis Ride, as shown in evidence for the plaintiff, was another and different claim from that under which Madame Charleville inhabited, cultivated and possessed her lot' in block 44, and that said lot claimed by and confirmed to the representatives of Ride was in truth locally situate in another and different block, then the jury ought wholly to reject the confirmation and survey for the representatives of Ride as being irrelevant to the matter in controversy in this suit. To the giving of said instructions for the defendant the plaintiff excepted. The jury found a verdict for the defendant. I. The receipts of the collector of State and county taxes, for taxes paid by Risley from Í837 to 1857 on his lot in block 44, were not competent and relevant testimony for the purpose for which they were offered, and ought to have been excluded. The defendant expressly stated that he offered these receipts as evidence only of the boundary of his lot — St. Louis v. Gorman, 29 Mo. 593. Traditionary evidence is not admissible for the purpose of proving the boundary of a private estate — 1 Greenl. Ev. § 145, note 1, and cases cited, and note 1 to p. 188 ; id. §§ 128-9, 131, 135-7. II. The testimony of Thomas Marshall was incompetent and should have been excluded. — 1 Greenl. Ev. § 440 — see particularly end of section on p. 652, and notes 3 & 4; Davis v. Mason, 4 Pick. 156 ; Farrar v. Warfield, 8 Mart. (N. S.) 695-6. III. The court ought to have declared as a matter of law that the Charleville lot was bounded on the east by a street, and therefore not entitled to riparian rights. Where the boundaries of a lot are, is a matter of fact to be determined by the jury ; but what constitute the boundaries of a lot, is a question of law to be decided by the court — • Whittelsey v. Kellogg, 28 Mo. 404; Bell v. Dawson, 32 Mo. 79. The instructions given at the request of defendant should therefore have been refused — Smith v. City of St. Louis, 21 Mo. 36; Smith v. Pub. Schools, 30 Mo. 298. IY. Admitting, for the sake of argument, that it was not a question of law, but a question of fact, whether the Charleville lot was bounded on the east by a street, it is submitted that the defendant, as a trespasser, was precluded from raising the question, and that the survey of block 44, made by the United States, was conclusive against him. The defendant did not show or set up any title in himself; he was a mere trespasser, and was therefore not in a position to attack the plaintiff’s title by attempting to show that the land covered by survey 400 was not vacant in 1803 — Kissell v. Schools, 18 How. 18; Jones v. Soulard, 24 How. 40. Instructions Nos. 1 and 2, refused, should have been given. Instruction No. 14 ought to have been given — 6 Pet. p. 303. Y. The 1st, 3d, 4th, 5th and 10th of plaintiff’s instructions, refused, contained a correct exposition of the law of riparian rights as declared by this court, and ought to have been given — Smith v. Pub. Schools, 30 Mo. 295; New Orleans v. United States, 10 Pet. 662 ; 4 Mart. 97 ; 6 Mart. 19. Cotton Press Cases — 18 La. 122, 278, 286 ; 7 Mart. 626, n. 5; 9 Mart. 656. j I. It was contended by the plaintiff, in the court below, that riparian rights did not attach to lots in the town of St. Louis. The Supreme Court of this State passed on this precise question in the case of Smith v. Pub. Schools, 30 Mo. 301. If the river is the boundary of a town lot, it may be riparian just as much as a tract of land would be in the country. The same question was decided in the Supreme Court of the United States, in Jones v. Soulard, 24 How. 41. II. That tradition, reputation and hearsay are admissible in respect to the existence, character and extent of public rights, and in respect to the location and boundaries of things of a public nature, is received as a settled rule by all text-writers on the law of evidence. The English cases make a distinction between public and private boundaries, holding that the latter cannot be proved by hearsay unless they are identical with a public boundary, in which last mentioned case hearsay is admissible — Thomas v. Jenkins, 6 Ad. & El. 525. In the present case, the dispute between the parties grew out of the existence of a road along the eastern line of the lot. According to the rule of the English courts, the character of this road might be ascertained by hearsay proof. But the American courts have been much more liberal, and have rejected the distinction above mentioned, holding that reputation and hearsay are always admissible on the subject of boundaries, whether public or private. The cases are collected and commented on by Judge Cowen in his edition of 1 Phill. Ev. 219, n. 87. This case is not at all analagous to that of St. Louis v. Gorman, 29 Mo. 573, in which the party relied on tax receipts as passing the city title by estoppel. No such effect is claimed here. In cases involving the statute of limitations, tax receipts have always been admitted as evidence of the character and limits of the possession — Williams v. Dongan, 20 Mo. 186; Menkens v. Ovenhouse, 22 Mo. 71; Draper v. Shoot, 25 Mo. 197. By reference to the Pennsylvania cases, it will be seen that the courts of that State have decided that the‘payment of taxes may enlarge the limits of an adverse possession ; so that if a trespasser enters upon a tract of land, and actually possesses only some small part, yet, by paying taxes on the whole for the time prescribed for limitation, he will acquire title to the entire tract — Royer v. Benlow, 10 S. & R. 304 ; Reed v. Goodyear, 17 S. & R. 350; McCall v. Nealy, 3 Watts, 73; Sorber v. Willing, 10 Watts, 141. Under this rule, it would seem that, in the case of St. Louis v. Gorman, supra, if the latter had continued to pay taxes for the whole period prescribed for limitation, he would have obtained a perfect title. And applying the same rule to the present case, it is manifest from the record that any right from the city was barred by the statute of limitations.