ERROR to the Supreme Court of the State of Missouri, the case being this:
The city of St. Louis, as is known, is situated on the west side of the Mississippi River and faces the stream. It was formed by the French and Spanish in times as early as 1764; and passed to the sovereignty of the United States by the cession which Frence made December 20, 1803, of the large region then known as the province of Louisiana. French subjects being already in possession of various rights throughout the town, Congress by statute of 1812 enacted that 'the rights, titles and claims to those town or village lots, out-lots, common field lots and commons, in, adjoining, and belonging to the towns which had been inhabited, cultivated or possessed, prior to the 20th of December, 1803, should be, and the same were thereby, confirmed to the inhabitants of the town according to their several right or rights in common thereto.' The act proceeds, in its first section:
'And it shall be the duty of the principal deputy surveyor of the said territory to survey the out-boundary lines of the said town, so as to include the out-lots, common field lots and commons thereto belonging. And he shall make out plats of the surveys, which he shall transmit to the surveyor-general, who shall forward copies of the said plats to the commissioner of the General Land Office and to the recorder of land titles. The expense of surveying the said out-boundary lines shall be paid by the United States.'
The second section of the act provided that 'all town lots, out-lots or common field lots included in such surveys, which were not rightfully owned or claimed by any private individuals, or held as commons belonging to such towns and villages, . . . should be reserved for the support of schools.'
In 1803, and indeed till the year 1844, there was a street running nearly parallel to the Mississippi River and within less than two hundred feet of it (the river rather eating into the bank, year by year), known as Second Street, or sometimes (in its extension), Prairie- a-Catalan or Carondelet. On the east side of this street, a block of ground, No. 44, ran eastward–ran, therefore, towards the river or to it; but whether 'towards' only or 'to' was a matter of dispute. On the north side of this block, for many years prior to the cession of 1803, one Madame Charleville had been settled, inhabiting and cultivating it; and on the south side, a free negro, named Charles Leveille.
In 1844, an extraordinary flood in the Mississippi River brought down such an immense quantity of sand that the river edge, which had previously, as above said (though apparently with some irregularities herein), kept itself within less than 200 feet of Second Street, now was left 600 or 700 feet away from it. The diagram will illustrate sufficiently the facts:
The result was that the city caused to be extended down to the new edge of the river those streets (Hazel and Lombard) which, running at right angles to the old stream, formerly met it at their extremity; and it made a new street (New Main Street) parallel to old Second Street. The idea will be better understood from a diagram:
A new block (No. 856) was thus formed out of the alluvion, immediately in front of old 44, the block formerly occupied by Madame Charleville and Leveille. To whom did this new block belong?
That was the question in this case. And as the riparian owner, whoever he might be, took the accretions, the answer depended obviously enough on the fact whether the old block (No. 44) had run down to the river or whether it had stopped short of the river, leaving a strip not owned by any private person, and which, therefore, either belonging to the city itself or else was property of the United States, and under the act of 1812, was reserved for the public schools.
In this state of facts the directors of the public schools of St. Louis brought ejectment, in one of the State courts, against a certain Risley, who had succeeded to the rights of Madame Charleville, and also against Fritz, who had succeeded to the rights of Leveille, to recover the block The former case (No. 27 on the docket) is here reported; it being understood that the latter case (No. 28) should follow any decision given in the other.
THE PLAINTIFF, relying on the act of 1812, introduced a large amount of documentary evidence, and among other concessions one to a certain Louis Ride, and a confirmation of it, with a survey of the same by the surveyor-general. According to this survey, the claim was located in the northwest corner of block No. 44 and extended eastwardly no further than 150 feet. He introduced also several plots of the town, among them especially one known as Chouteau's map, with the opinion of the Supreme Court of Missouri given in the case of St. Louis Public Schools v. Erskine.*fn1
In that case, where apparently objection had been made to the reception of the map at all, the court said:
'The first question that arises in this case is the propriety of the action of the Land Court in admitting in evidence the plat of the town of St. Louis, placed in the office of the record of land titles by Auguste Chouteau in the year 1825. The plat was made in 1764, about the period that the village of St. Louis was founded. Chouteau is reputed as one of the founders of the village. The recorder of land titles, who had been in the office since 1837, testified that it was a public paper and as such had been inventoried. August Chouteau has been dead many years. Mr. Geyer testified that he had seen the plot in the recorder's office several times; that this map was produced in a case he tried for the schools twenty-four or twenty-five years ago.
'When we consider that in matters of public concern, traditionary evidence is admissible as to boundaries, we are at a loss to conceive the ground on which the objection to the evidence is based. Chouteau was not the owner of the land on which the village was laid out, nor does it appear that he had any previous authority to do the act. But his conduct and that of his colleagues, in laying off the town, was sanctioned and adopted by the Spanish government. For many years the map has been placed in the public office where all the papers and documents relating to the early land titles in this territory were deposited. It has been exposed to the examination and scrutiny of all, so that its errors might have been detected. The map was made at a time and in a manner which show that its execution could not have been prompted by any sinister motive.
'We know that it has frequently been in use in this court, to show the plans and extent of the ancient village as originally laid out by its founders. For such purposes, when all the circumstances attending this map are considered, it is not easy to conceive more satisfactory evidence of facts of so ancient a date. If authority is wanted, in support of this view of the subject, it may be found in the cases of Morris v. The Lessees of Harmer's Heirs (7 Peters, 560), and The Commonwealth v. Alburger (1 Wharton, 469).'
Chouteau's plat represented the place thus; leaving a broad strip between block No. 44 and the river:
THE DEFENDANT, on the other hand, introduced a concession by the Spanish governor, dated March 1, 1788, to the negro Leveille, for a lot in St. Louis of 60 by 150 feet, described in the concession as bounded on the one side by the heirs of Louis Ride, on the other by his Majesty's domain; on the rear by the Mississippi, and on the main front by the road which follows from the second main street to the Prairie- a-Catalan.
He also introduced a concession by Governor Manuel Perez to Augustin Amiot, dated September 2, 1788, of a lot in the southern part of St. Louis, described in the concession as '120 feet front by 150 feet deep, bounded on the north side by the lot of the free negro called Charles, on the other side by the royal domain, on the rear by the Mississippi, and on its principal front by the royal road leading to the Prairie- a-Catalan.'
BOTH PARTIES introduced parol evidence tending to show:
On the defendant's side, that in Spanish times the lots ran to the river; that there was never any street between the east end of the lots and the river; that the ends of the fence would sometimes have to be moved back on account of the abrasion or falling in of the river bank; that the river, for some years prior to 1844, occasionally slightly receded from the east bank, in low water, but that in consequence of high water in 1844, and of accumulations caused by the materials used in constructing cross streets out in the river, the ground afterwards increased rapidly eastwardly.
On the plaintiff's side the parol evidence tended to prove that there was always a path or road between the lots and the river, in Spanish times, and that the road extended the whole length of the town; that the government always left a strip of land along the river for voyagers, but that the road along the river was repaired by the voluntary act of the people living along the road and not by public authority or public taxes.
THE DEFENDANT gave in evidence a resolution of the board of aldermen of the city of St. Louis, authorizing a survey and map of the city, and a lithographic copy of a map known as Paul's map of 1823, which was proved to be a true copy of the original made under such resolution. It was admitted that the field-notes of the survey and the original map were lost. From this map it appeared that the main street extended at the date of the map no further south than Plum Street, and that the river covered all the eastern part of Block 44. The defendant then introduced the ordinance of
the city, passed in 1851, opening Main Street south of Plum and through Block 44, and proved that defendant, in conformity with the ordinance, relinquished the right of way; also a tax sale of the lot of Leveille for the city taxes of the year 1820. The certificate of sale of the assessment describe the lot as bounded east by the river.
The defendant also showed in evidence the tax receipts for his real property for the years 1837, 1838, 1839, 1845, 1846, 1847, 1848, 1849, 1853, 1854, 1855, 1856, 1857. From these receipts, it appeared that up to 1853 the defendant was taxed for a lot in Block 44, as bounded on the east by the river. The depth of the lot was described as increasing from 150 feet in 1837 to 800 feet in 1854. In 1854 and following years the defendant was taxed for the property in dispute as lying between Main and Front Streets. The defendant also showed that he had been assessed by the city, and had paid in 1854 a tax on the property in question for opening streets, and then introduced a map of Risley's Addition, recorded in 1855.
The defendant then introduced one Marshall as a witness, who testified that he was an examiner of titles to lands; that he had examined almost all titles to lands in the city of St. Louis, and he gave it as his conclusion, that the land of Ride was north of Elm Street, that is to say, was nowhere in the neighborhood of Madame Charleville's lot, but was in fact in a different and distant part of the city. He also read in evidence a deed to Tayon to Papin in 1832, in which the lot was described as bounded eastwardly by the Mississippi River, or street if any there be; also the deed of Papin to Stearne and Risley, containing the same boundaries; also the deed of Stearne to Risley in 1836, with the same boundaries.
There was much other testimony on both sides, but that above stated constituted the controlling parts, and the residue was merely auxiliary or cumulative.
Upon this case the plaintiff's counsel asked the court to give fourteen instructions, the purpose of which, in the general, and so far as insisted on here, was to charge the jury as to the effect in law of the evidence; and that the plan of the town by Chouteau should be taken as a conclusive muniment of title.*fn2