Summary
This case was brought up from the Supreme Court of the State of Missouri, by a writ of error, issued under the twenty-fifth section of the judiciary act.
The suit was originally brought in the Circuit Court (State court), for the county of St. Louis, but the venue changed to the county of St. Charles.
It was an ejectment, brought by the heirs of Mackay against Dillon, to recover a tract or parcel of land in the county of St. . Louis, containing two hundred arpents or more, bounded on the north by land formerly belonging to Auguste Chouteau, called the Mill tract; on the south by'land formerly belonging to Anthony Soulard, deceased ; on the east by the road leading from the city of St. Louis to the village of Carondelet; on the west by land formerly of the royal domain.
As the instruction asked by the defendant, and granted by the court', referred to the copy of the claim given in evidence, it is necessary to set forth the whole of this evidence upon which the claim of the defendant rested; and also to state the title of the plaintiffs.
The plaintiffs showed title as follows.
1st. Mackay’s wil.1, the production' of which was afterwards rendered unnecessary, by the admission of the defendant, that the SJaintiffs were the wife and children and sons-in-law of James lackay deceased.
2d. The admission of the defendant, that, at the commencement of the suit, he had in his possession thirty acres, part of the tract in the declaration described, all of which, thus in his possession, laid west of the eastern line of the tract claimed as the commons of St. Louis, and was embraced in the survey of the • commons as made by James Mackay in the year 1806.
3d. Mackay’s petition for a concession, and the order of the Lieutenant-Governor thereupon, both in 1799, and a survey in 18°2.
4th. Proceedings of the board of commissioners established by the act of Congress, passed on the 2d of March, 1805.
5th. Proceedings under the act of Congress, passed on the 13th of June, 1812.
6th. Extracts from the decision of Mr. Bates, under the same act.
7th. Proceedings of the board of commissioners established by the acts of Congress, passed on the 9th of July, 1832, and 2d of March, 1833.
8th. The act of Congress, passed on the 4th of July, 1836.
9th. The certificate of the surveyor of the public-lands, dated the 5th of December, 1840.
10th. The deposition of Soulard.
11th. Proof of the location and value of the land.
These points will be taken up in order. Nothing more need be said with regard to the first and second.
3. Mackay’s petition for a concession; the order of the Lieutenant-Governor, and survey.
il To Don Charles Dehault Delassus, Lieutenant-Governor and Commander-in-chief of Upper Louisiana.
“ James Mackay, commandant of St. André, of Missouri, has the honor to represent, that, having often sundry reports to make to government, on which account Ms presence is required in this town, he would wish to have a place of residence in ,the same ; therefore,- considering that all the town lots are conceded, he has .the honor to supplicate you to have .the goodness to grant to Mm, to the south of this town, a vacant tract of land of about two hundred and soméarpents in superficie, which tract of land is bounded as follows — To the north, by the land of Mr. Auguste Chouteau ; to the south, by lands of Mr. Antoine Soulard; to the east, by the. public road going from this town ■ to Carondelet; and to the wes.t, by. his. Majesty’s domain. The petitioner, confiding in your justice, hopes that his zeal for his Majesty’s service, and the small salary which he enjoys, shall be strong motives in the opinion of a cMef who, like you, makes Ms happiness consist in distributing favors to the officers who have the honor to serve under his orders. In this belief, he hopes to obtain of your justice , the favor-which he solicits.
JACQUE MACKAY.
“ St. Louis, October 9, 1799.”
“ St. Lome of Illinois, October 9, 1799.
“ Cognizance being tajeen of the foregoing memorial of Mr James Mackay, .and due attention being paid to his merits and good services, the surveyor of this Upper Louisiana, Don Antonio' Sou-lard, shall put the interested party into possession of the land which he solicits, in the place designated in this memorial, and this being executed, he shall draw a plat of his survey, delivering the same to the party, with his certificate, in order that it shall serve to him. to obtain the concession and title' in. form, from the intendantgeneral, to whom alone corresponds, by royal order, the. distributing and granting all elásses of lands of the royal domain.
CARLOS DEIIAÜLT DELASSUS.
“ Truly translated. St. Louis, 20th February, 1833.
JULIUS DE MUN.”
Translation of the Spanish Survey.
u The bounds and comers are all indicated on.the survey. All the line-trees areimarked with a blaze above, and.two notches: bélow, and the right and left blazed only. Marked in book A, fol. 55, No. 94.
.“ Don Antoine Soulard, particular surveyor of Upper Louisiana, certify that, on the 24th of this present year, in virtue of the decree which accompanies of the Lieutenant-Governor and sub-delegate of the royal estate, Don Carlos Dehault Delassus,- in date of the month of October, of the year 1799, I went .to the land of Don Santiago Mackay,. the admeasurement of which I have taken in. presence of the proprietor and of the neighbours who boufid thereon, with the perch of Paris of eighteen feet long, according to the custom adopted in this province of Louisiana, and without regarding the variations of the needle, which is seven (7) degrees and thirty (30) minutes, as appears by the plat that precedes ; which land is situate to the south of the little river of the mills, situate near the town of St. Louis, bounding north by the lands of Don Auguste Chouteau ; south, in part, by another piece of land of Don Antonio Soulard and the royal domain ; east, in part, by the land of Don Auguste Chouteau, and by the royal road from- the town to the village of Carondelet; west, by the lands of the royal domain ; and in order that it may appear when fitting, I give the present with the plat that precedes, in which are indicated the dimensions and natural and artificial limits which surround the said land. St. Louis of Illinois, 17th of December, 1802.
ANTONIO' SOULARD. Particular Surveyor.”
4. Proceedings of the board of commissioners established by the act of Congress, passed the 2d of March, 1805.
This act provided for the appointment of three persons, who should examine and decide on. all claims submitted to them, and report the result to the Secretary of the Treasury, who was directed to communicate it to Congress.
“ July 22d, 1806.
“ The board met agreeably to adjournment. Present the Honorable John B. C. Lucas, Clement B. Penrose, and James L. Donaldson, Esquires.
“James Maekay, claiming two hundred arpents of land, or thereabouts, situate in the fields of St. Louis, produces a concession from Charles D. Delassus, dated October 9th, 1-799, and a survey of the same, dated the 24th of November, and certified the ' 17th of December, 1802.
“ Auguste Chouteau, being duly sworn, says, that the said tract of land was surveyed in 1804 or 1805 ; that' he never heard of. a concession- having beén granted for the same until the survey was taken ; that the said tract is adjoining a tract claimed by the witness, and • that the same interferes with a tract claimed by the inhabitants of St. Louis as a common. The board, from the above testimony, are satisfied that the aforesaid concession is antedated. On motion, adjourned to to-morrow, 9 o’clock, A. M. See minutes, No. 1, pp. 412, 413, 417, and 419.”
“ Friday, July 31si, 1807. 3 o,clock.
“ The hoard met agreeably to adjournment. Present the Honorable John B. C. Lucas, Clement B. Penrose, and Frederick Bates, Esquires. James Maekay, claiming about two hundred and eighty-two arpents in the common of St. Louis, produces a concession from Charles Dehault Delassus, dated the 9th of October, 1799.' Survey and certificate dated the 17th of December, 1802. Laid ovér for decision. • Thé board adjourned until to-morrow, 9 o’clock. JOHN B. C. LUCAS.
CLEMENT B. PENROSE.
. FREDERICK BATES.
“ See book No. 3, pp. 19-21.”
“ Saturday, November 4th, 1809.
“ Board met. Present, John B. C. Lucas, Clement B- Pen-rose, commissioners. James Maekay, claiming two hundred and eighty-two arpents of land, situate on the commons of St. Louis. See book No. 1,. p. 417 ; book No. 3, p. 21. It is the opinion of the board that this claim.ought not to be confirmed. Board adjourned till Monday next, 9 o’clock, A. M.
JOHN B. C. LUCAS.
CLEMENT B. PENROSE.
“ See hook No. 4, pp. 185 - 187.”
5. Proceedings under the act of the i 3th of June, 1812.
“ St. Louis, December 28th, 1813.
“ James Mackay claims about thirty arpents of land near the town of St. Louis, produces a concession from Charles D. .Délassus, Lieutenant-Governor, for about two.hundred arpents, dated the 9th of October* 1799. Survey of two hundred and eighty*eight arpents, 17th of December, 1802 (certified).
“ M. P. Leduc, as agent of claimant, abandons all but, about thirty arpents; the part abandoned supposed to be comprehended by the stirvey of the commons. It appearing from the minutes, book No. 1, p. 417, that no testimony has been introduced on the merits of this claim. A witness is now admitted.
c that when he arrived he found the same fenced in, and that every inhabitant jyas obliged, under certain penalties, to attend to and make such repairs as the said inclosure or fence required ; and further, that Sylvester Labbadie having, in the year 1792, obtained a concession for lands forming part of said commons, and having, in consequence thereof, began his improvement of the same, the inhabitants remonstrated against it" to the governor, who prevented him from cultivating the same, until such time as the intendant should ■ have decreed otherwise.
“ William H. Lecompte, being also sworn, says, that he has been an inhabitant .of thé country for upwards [of] forty-four years ; has known the commons from his 'first arrival in it. That said commons has increased in proportion to the population of. the village ; that he has known it of the size it now is for upwards of ten years ; that the old commons is included in the present' one, and that the ' regulations passed respecting thé samé were always considered as laws, and enforced as such ; and further, that other regulations were had respecting the same, -arid also put in force. The board reject this claim, for want of actual inhabitation and cultivation, and a r duly_registered warrant of survey (carried to page 311 for remarks of the board). See commissioner’s minutes, book No. 1, pages 288-290.”
“ July 14th, 1806.
“ The board mét agreeably to adjournment. Present, the Honorable John B.’ C. Lucas,; Clement B. Penrose, James L. Donaldson, Esquires.
“ In the case of the commons - of St. Louis,.pp. 289, 290, the board remark, that this claim originated under the French government;'that grants of commons were'usual under the French and Spanish governments, and. in conformity with their respective laws, — they deem it to h'e; equitable under Spanish law. On motion, adjourned to Monday, the 16th instant, 9 o’clock, A. M. See minutes, book No. 1, pp. 310-312.”
“ Thursday, January 2d, 1812.
, “ Board met. Present, John B. C. Lucas, Clement B. Penrosé, Frederick Bates, commissioners. Inhabitants of the town of St. Louis, claiming 4,293 arpents of land as a common. See book No.. 1, pp. 289, 311. -
“ It is the opinion of a majority of the board' that this -claim ought not to be granted'; .Clement B. Penrose, commissioner, voting for a confirmation thereof under the usages anvd customs of thé Spanish government. Board adjourned till Monday next, nine o’clock, A. .M. JOHN B. C. LUCAS. ■
CLEMENT B. PENROSE.
FREDERICK BATES.
“ See commissioner’s’minutes, book No.( 5, pp. 551-553.”
4. Act of Congress, passed the 13th of June, 1812 (2 Lit. • & Brown’s-ed. 748).
; This act, amongst other things, enacted, “ That the rights, ti"tles, and claims to town or village lots, out lots, common field lots, and commons in, adjoining, and belonging to the several towns' or villages of Portage- des Sioux, St; Charles, St. Louis, &c., &c., which lots have been inhabited, cultivated, or possessed prior to the 20th day of December,- 1803, shall be, and the same áre hereby, confirmed to the inhabitants of the respective towns or villages aforesaid, according to their several fight or rights in common thereto ; provided, that nothing herein contained.shall be construed to affect the rights of any persons, claiming the same lands, or any part thereof, whose claims have been confirmed by the board of commissioners for adjusting and -settling claims to land in the said territory.”
5. Act of Congress, passed on the.26th of May, 1824 (4 Lit. &’ Brown’s ed. 5), and the testimony taken under it.
Testimony relating to town and village lots, out lots, and common, field lots in, adjoining, or. belonging to the several towns ■or villages of Portage des Sioux, ,St. Charles, St.. Louis, St. Ferdinand, Villa a Robert, Carondelet, Ste.Gei}evievevNew Madrid, New Bourbon, Little Prairie, and Mine á Burton, in Missouri, and the village of Arkansas, in the Territory of Arkansas, as directed . by an act of Congress, passed May 26th, 1824.
THEODORE HUNT, Recorder of Land Titles.
. See Hunt’s minute book, No. 1, p. 1.
The mayor, aldermen, and citizens of the city of St. Louis produce Henry Douchonquette and Joseph Charleville, for the purpose of having their depositions recorded as relates to the St. Louis commons.
Henry. Douchonquette, being duly sworn, says he is sixty-six years of age, and has lived in St. Louis upwards of forty years, and during this time, until the change of government took place, he always knew there was a common belonging to the inhabitants of the town of St. 'Louis, and that, there was a fence round it, and that he has often assisted to make and keep in repair the said fence, As’néar ás he can descrihe-it, it was bounded as\follow.s ; — The fence began near to where Mr- Reynard now lives, above'the town,, and run back df' the town; and from thence to the. Carondelet field fence, or to the River des Peres ; arid the ground thus taken in was (considered the commons.
HENRY DOUCHONQUETTE.
Sworn to before me, November 22d, 1825.
THEODORE HUNT, Recorder of Land Titles.
Joseph Charleville, being duly sworn, says he has resided thirty-five years in.,the town of St. Louis, and is fifty-five years old, and has had the deposition of Henry Douchonquette read to him, and of his knowledge he knows it tó be true.
JOSEPH CHARLEVILLE.
Sworn to before me, November 22d, 1825.
THEODORE HUN4f, Recorder of Land Titles.
Mackay Wherry, being duly sworn, says he has trqly translated and read-to Henry Douchonquette -and Joseph Charleville .the above depositions before they signed the same,-and they said they were true. M, WHERRY.
Sworn to before me, November 22d, 1825.
THEODORE HUNT, Recorder of Land,Titles.
See Hunt’s MS. book, No. 3, p. 79.
John Bap, Lorain, sénior, being duly sworn, as relates to the commons of St. Louis, says he.is about eighty-four years of age, and it is about fifty years since he first came to reside in St. Louis, it being when Piernas, was lieutenant-go.vernor of this, country ; and he, this deponent, says, when he first came to reside at St. Louis, the land fenced in between the Mississippi River and the common field fence (excepting the town and such small grants as were made within the said limits) was a common for the use of the inhabitants of the town of St. Louiscertain he is, that it was always used as such by the inhabitants, from the time he first, caine to reside in St. Louis until he removed to Florisant, about, twenty- • five years ago ; and this deponent further_says„ that when he first came to St. Louis, the commons extended to the River des Peres ; but after that, when Carondelet was laid out, there was an agreement made between the inhabitants of St. Louis and the inhabitants of Carondelet, that the common field fence of St. Louis should join the common field fence of Carondelet, and that all east of the St. Louis field fence should belong to the inhabitants of St. Louis, and west, to Carondelet.
his
JOHN BAPTISTE + LORAIN, Pere.
mark.
Sworn to before me, November 23d, 1825.
THEODORE HUNT, Recorder of Land Titles.
Baptiste Dominee, being duly sworn, says he is' seventy-five years of age, and will have resided forty-six years in St. Louis next February, and that he has had the deposition,.of John Baptiste Lorain, pere, read to him, and that he knows if to be true.'
baptiste + Dominee.
, . . mark.
Sworn to before me, November 3d, 1825.
. THEODORE HUNT, Recorder of Land Titles.-
Alexander Gremaux, dit Charpentier, being duly sworn, says he is sixty-six years of age, and has resided in St. Louis forty-four, years, and has heard read to him the deposition of John B. Lorain, senior, and knows it to be true; and' he further knows, that the commons was surveyed by Antoine Soulard, in the time of the Spanish government-
his
ALEXANDER + GREMAUX, dit Charpentier. .
mark.
Sworn to before me, November 23d, 1825.
THEODORE HUNT, Recorder of Land Titles.
Mackay Wherry, being duly sworn, says, that he has truly translated* and read to John Baptiste Lorain, senior, the aforegoing deposition of his, before' he. signed the same, and that .he said it was true ; and that he likewise translated and read to Baptiste Dominee‘^nd Alexander Gremaux, dit Charpentier, the deposition of John Baptiste Lorain, senior, and that they said it was, to their knowledge, true ; and this deponent further says, that he has translated and read the depositions of Baptiste Dominee and Alexander Gremaux to each of them before they signed the same.
M. WHERRY.
Sworn to before me, November 23d, 1825.
THEODORE HUNT, Recorder of Land Titles.
See Hunt’s -minutes; book No. 3, page 82 and. 83.
• Baptiste Rivieré del Bacané, being duly sworn, in relation tc the St. Louis commons, says, the bounds pf the commons began where the ox-mill now is, and thence west, up the hill; thence southwardly, in the- rear of where Joseph Papen now lives ; .after it' crossed Mill Cree.k, it went to the Prairie des Noyer thence southwardly, about an arpent or two below the place called the Pain Sucre, which place is a little in the rear of where the shot-tower now is ; and.- eastwardly by the Mississippi, passiñg by the spring of Beneto Vasquez. And this deponent says, that for upwards of sixty years the land contained within these limits was the St. Louis commons, and he believes was granted by St.. Ange; and he does not live in St. Louis, nor. has any lot there.
his
BAPTISTE + RIVIERE.
mark. -
Sworn to before me, November 23d, 1825.
THEODORE HUNT, Recorder of Land Titles.-
- M.-P. Leduc, being duly sworn, says he-has truly translated and read the above to Baptiste Riviere. M. P. LEDUC.
THEODORE HUNT, Recorder of Land Titles.
, Pierre Chouteau, senior, being duly- sworn, as relates to the St-•Louis.commons,- says, that he came to this town about six months after the foundation of the same, áñd from that-time he, of his knowledge, knows that the. commons was recognized and allowed by the different lieutenant-governors, ás well French á's Spanish ; and he further says, that as the town enlarged, there were meetings.held of the inhabitants at the lieutenant-governor’s, for the purpose of enlarging'the commons. This was done more than once, and, as it was determined on. at said meetings, the fence was removed, so as to enlarge the- same for the use of the inhabitants of- said town of St. Louis ; and he further says, all land lying between the common field fence (excepting the ancient concession) and the river was considered as commons for.the úse of the inhabitants of St. Louis. He, this deponent, further says, that about twelve years'ago he understood that Madame Laquaifee had a lot at the upper part of the town, adjoining the half moon battery, but before that time he never heard of such a claim) and he, of his knowledge, knows it never was possessed or occupied by any person before .or at the time the change of government took place from France to the United States.
PRE. CHOUTEAU.
Sworn to befóreTírer, November. 24th 1825.
THEODORE HUNT, Recorder of Land Titles.
See Hunt’s minutes, book No. 3, pages 84 and 85.
Joseph Papen, being, produced by Baptiste Douchonquette, was duly sworn, and says, .that he was born in the town of St. Louis, and is forty-five years of age, and has always lived in said town .of St. Louis ; that to the knowledge of this deponent there was no inclosure or common.field lo.ts below the town of St. Louis. This deponent further, says, that he is the grandson of Veuve Chouteau, the mother of ;Auguste Chouteau, and recollects perfectly well, that, when a small boy, the hands of the then commandant drove the hands of his grandmother from off the land which his grandmother ■ claimed, below the town of St. Louis, Called the Little Prairie ; and further this deponent says, he never, heard of the claims of Ortes, and Cambras, and Gervais, that is Said was situated in this samé prairie. JOSEPH PAPIN.
Sworn to before me, August-29th, 1825.
THEODORE HUNT, Recorder of Land Titles.
Francis Caillon, being, duly sworn, says he has .resided in the town of St. Louis for fifty-eight years, and to his knowledge there never was an inclosure in the Little Prairie south of the tpwn of St. Louis. About thirty-five years ago, to the knowledge of this deponent, Madame Chouteau sent a man, Dubois, to cultivate the ■ land she claimed in the said Litde Prairie, and to the knowledge of this deponent,- the then. citizens, of St. Louis complained to Perez, the then commandant [ — ] forbid that any inclosures or cultivation should be made thére, and they immediately desisted ; and this deponent says, he never has heard -of. any attempt to cultivate or inclose and of the said Little Prairie, south of the town of St. Louis. This deponent further says, that he was well acquainted with Drtes, and Cambras, and Gervais* and, to his knowledge, they, nor. neither of them, ever did inclose, or cultivate, or claim any land in this said Little Prairie, south of the-town of St; Louis; ' his
FRANCOIS + CAILLON.
• - mark.
Sworn to before me, August 29th, 1825.
THEODORE HUNT, Recorder of Land Titles.
Baptiste Dominé, being duly sworn, says he has resided in the town of St. Lpuis for forty-five years, being occasionally absent for three or four months at a time, and, to his knowledge, during these forty-five years, there never was any land inclosed or cultivated in the Little Prairie, south of the town of St. Louis.
his
BAPTISTE + DOMINE.
mark.
Sworn to before me, August 29th, 1825.
THEODORE HUNT, Recorder of Land Titles.
Regis Vasseur, being duly' sworn, says he has resided in the town of St. Louis for forty-eight years, and during the whole of this time the Little Prairie, south of the town of St. (Louis) belonged tq the inhabitants of said town as a commons, and during this time never was cultivated or inclosed.
h¡8
REGIS + VASSEUR.. .
mark.
Sworn to before me, August 29th, 1825.'
THEODORE HUNT, Recorder of Land Titles.
Horatio Cozens, being duly sworn, that he has translated and explained truly the above depositions to Joseph Papen, Francois Caillon, Baptiste Domine, and Regis Vasseur, respectively, before they swore to the same. HORATIO COZENS.
Sworn to before.me, August 29th, 1825.
THEODORE HUNT, Recorder of Land Titles.
See Hunt’s minutes, book No. 2, pages 171 - 173.
Recorder^ Office,
St. Louis, Missouri, 5th Sept., 1839.
I certify - the foregoing, in part, to be truly copied from the original documents on file, and the balance to be truly transcribed from the books all on- file and of record in this office, befog a full and complete transcript of all that appears of record in this office in relation to the claim of the inhabitants of the town of St. Louis to a common. F. R. CONWAY,
United States Recorder of. Land Titles '■in the State of Missouri.
To the admission of all. this evidence the plaintiff objected, which objection the court overruled; to which decision of the court * overruling the objection of plaintiff, and admitting said^ documents in evidence, plaintiff excepted, and prayed that said exception be allowed, signed, arid sealed by the court here and made part of the record in this cause.
Signed, EZRA HUNT, [seal.]
6. Act of Congress passed January 27th, 1831. (4 Lit. & Brown’s ed. 435.)
This act declared, — That the .United States do hereby relinquish to the inhabitants of the several towns or villages of Portage des-Sioux, St. Charles, St. Louis, &c., &c., all the right, title, and interest of the United States in and to the town or village lots, out lots, common field lots, and commons, in, adjoining, and belonging to the said towns or villages, confirmed to them respectively by the first section of the act of Congress, entitled, &c., passed on the 13th day of June, 1812.”
In the course of the trial á transcript of a record and deed were-offered in evidence on the part of the defendant, and objected to by the plaintiff. The court sustained-the objection, to which opinion the defendant excepted ; but the Supreme Court having ho jurisdiction of the matter, it. is unnecessary to notice it further.
7. Evidence of Pascal Cerre.
“ Pascal Cerre, being sworn, on his-oath stated : — I have resided in St. Louis,I may say since 1787. I was then fourteen years of age. I was a boy before then, — and was in St. Louis before then, — but cannot say that I remember any thing except since 1787. I was pretty familiar with the tract of land called St. Louis commons, since .1787,-and also acquainted with Mr. Mackay’s claim, from the time he built his brick house. The land lying south of the Chouteau mill tract was owned by the inhabitants of St. Louis, or most'of them, as a common. I knew the situation of the Barriere des Noyers field, — but not the situation of the common fence in rela,tion thereto. I cannot tell whether common fence-wag west of ■ Mackay’s claim. The common fence began at the yiffodmill, which is at the upper end of the town of St. Louis, at Menard house, betwixt the windmill and ox-mill, and run up in a western direction, passing by a little mound south of Ashley’s premises to the front line of the forty' arpents tract; then south along that line, near Madame Leioux, now Colonel Johnson’s premises ; then took a west direction towards the mill-pond, and went by a place used to be called Motard’s plantation, now . from • then it went westto the front line of the forty arpents in Prairie des Noyers, in a southeast direction from Fontaine’s house, and running south passed by the spring in A. Gamble’s, now McDonald’s, plantation, ten or twenty feet east of said spring ; then in a southern direction to the northeast corner of the Carondelet common field; and thence I heard the Carondelet fence joined in, and went to the River des Peres..’ From the northeast corner of the Carondelet field, the fence went eastwatdly to now the shot-factory. -The house where Mackay lived and died is now the convent. The land that lies west, .to wit, the land described in the United States survey as Mackay’s claim, between the line there designated and dotted as front boundary of St. Louis commons and Motard, on the west of said claim, was used as common, as well as the balance of the common. Motard’s plac.e is. in the Cul-de-Sac, north of the fence. Where the spring of Motard is and hir.house was north of the fence ; árid Motard had no improvement south of the fence. The common fence never went to Stokes’s place before it turned south, but went more to the left. There was no improvement-south of Motard’s fence ; but all was brush and common?. The western part of the United States survey was always used as commons for grazing, to separate the cattle from the common fields, which were open. The inhabitants of the'village got their wood on said land used as commons, when there was timber on it. My father did so. The land included in Mackay’s survey, which was shown to witness, was used as commons until 1796 imtil the reign of Zenon Trudeau, when they ceased fencing the same as commons. It was continued to be used as wood and pasturage from that till 1804, and since. I believe that after 1796 all the country around St. Louis was used as common and- indiscriminately, whether within or without the limits of ■ where the commons fence stood.' I went within the commons to get horses and hunt while the fénce stood. There were plantations on the bank of the Mississippi, — Brazeau, Tayon, and.others. Brazeau, Tayon, and others had separate fences, including all their cultivated ground, but did not go west.’further than the Carondelet road, which run then more easterly than now.. My father had property within the commons, seventy-two arpents ; he fiad a fence on it at all times until now. Vasquéz had formerly a, .cabin in the. .commons, east- of A._ Gamble’s, in the commons where Carr Lane now owns. A negro man lived in the cabin, and had a small inclosure, and was called Benete’s spring, — la'fontaine'á Benéte. He lived there in 1788 and 1789. 'Idon’t know whether he had a concession. Brazeau, Joseph, had property within the commons, and his fence there, his family and stock. Settlement, I knéw of none but the settlement the negro lived in, within the commons, west of the Carondelet road. The other plantations wept no. further west than the Carondelet road. The Soulard property; which c.ame from my father, went back to the Carondelet road,'and no farther. I do not know that horses were continued to be pastured at liberty, except on the commons. I only heard of Mackay’s claim till about twenty-four or twenty-five years ágo, when he went and built his house. I have heard of Marie Nicol claim, which went by the name of Lefegre de Marie Ni Colie. It is in the commons on the northeast end of the commons, west of' William Russell’s, or rather northwest. The common fence was in good order in 1787. In 1782 I was in St. Louis, but can[not] say whether ,the fence was. there. ”
8. Two deeds from the city of-St. Louis to Dent and Dillon . respectively. The deed to Dillon was dated on the 7th of April, 1836.
To the admitting of which in evidence plaintiffs objected ; which objection the court overruled ; to which judgment of the court overruling the objection of plaintiffs, and admitting said documents in evidence, - plaintiffs excepted. Here the defendant closed this cause.
Thereupon defendant moved the court' to give the jury the following instruction : —.
“ That the claim of the inhabitants of the town of St. Louis to commons, as exhibited upon the copy of the claim given in evidence, was confirmed by the act of Congress of the 13th June, 1812, to the inhabitants of said town according to the claim, and that the title to the land so confirmed is a valid title against the title of the plaintiffs under the confirmation, by the get of Congress' of the 4th July, 1836.”
Given, — to the giving of which instruction plaintiffs objected ; which objection the court overruled; to which judgment of the court overruling plaintiff’s objection, and giving the said instructions, plaintiffs excepted ; and thereupon plaintiffs moved the court to give the jury the following instructions : —
‘{ That Mackay’s survey of common, preserving Mackay’s claim on the northeast part thereof, is conclusive that the claim of commons did not extend over Mackay’s claim, as between those claiming the common ánd Mackay or his heirs. That Mackay’s survey of commons, including his claim, is good evidence to go to the jury that the claim of commons did not extend over and cover Mackay’s claim. That the deed from the city to Dent conveyed no title under which defendant may justify in this action v That the deed from the city to Dillon conveyed no title' under which, defendant may justify in this action.”
Refused, — all and each of which instructions the court refused to give ; to which judgment of the court overruling plaintiff’s motion, and refusing to give the said instructions, or any of them, plaintiffs .excepted. These were all the instructions asked for, or “given, or refused. And plaintiffs pray that their said several exceptions herein contained and set forth may be allowed, signed, and sealed by the court here, and made part of the record in this cause;
EZRA HUNT, [seal.]
The other bill of exceptions is in the words and figures following, to wit:—
“■ Isabella Mackay et al. v. Patrick M. Dillon.
“ Ejectment.
“ St. Charles Circuit Court :
“Be it remembered that plaintiffs moved the court for reasons filed, tb wjt: —
“ Isabella Mackay et al. v. Patrick M. Dillon.
“ Ejectment.
“ Plaintiffs move the court to set aside the. verdict rendered in this cause, and grant them a new trial, because, —
“1st. The court misinstructed the jury.
“ 2d. Because, the court refused to give the instructions prayed for by plaintiffs.
“ 3d. Becáuse the jury found against law and evidence.
“ 4th. Because the jury found against the weight of evidence.
“ 5th. Because the court admitted evidence that ought to have been excluded. - ■ - ' "
“ 6th. The allusions and instructions of the court operated as a surprise upon the plaintiffs-. '
“ Isabella Mackay et al., plaintiffs, by their- attorney, Bryan Mullanphy, moved the court to . set aside the verdict in this cause, and. grant them a new trial, which motion the court over-. ruled ; to which judgment of the court overruling said motion, and refusing to. set aside said verdict, and grant plaintiffs a new trial, plaintiffs- excepted; all evidence and matters in the cause being preserved in a previous bill’ of exceptions in.this cause, plaintiffs pray -that this exception now here taken be allowed, signed, and sealed by the court here, and made part of the record in this cause.
“EZRA HPT. [seal.]’’
Under these instructions of the court, the jury found a verdict for the defendant; and upon the bills of exceptions the case was carried up to the Supreme Court of Missouri,- which, on the 24th of May, 1841, affirmed the judgment of the court below*
Tc review this opinion .and judgment, a Writ of error brought the case to this court.
The great but necessary length of the statement by the reporter renders it impossible to report these, arguments, which were printed, and occupied forty pages.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
