Guitard et al. v. Stoddard.

government, was conclusive of boundary, was the question before the court. Mr. Justice Catron, in delivering the opinion of the court, says, "By the first section of the act of 1812 Congress confirmed the claim to commons adjoining and belonging to St. Louis, with simila claims made by other towns. But no extent or boundaries were given to show what land was granted; nor is there any thing in the act of 1812 from which a court of justice can legally declare that the land, set forth in the survey and proved and proved as commons by witnesses in 1806, is the precise land Congress granted: in other words, the act did not adopt the evidence laid before the board for any purpose; and the boundaries of claims thus confirmed were designedly, as we suppose, left open to the settlement of the respective claimants by litigation in courts of justice or otherwise."

Again in the case of Les Bois v. Bramell, the same learned judge says of this act, "that this was a general confirmation of the common to the town as a community, no one ever doubted, so far as the confirmation operated on the lands of the United States."

The questions settled by this court are that the act of 1812 is a present operative grant of all the interest of the United States, in the property comprised in the act, and that the right of the grantee was not dependent upon the factum of a survey under the Spanish government.

No question before this has been submitted to the court upon the interpretation to be given to the "rights, titles, and claims " which were the subject of the confirmation of the United States.

The instruction given to the jury by the Circuit Court implies that the confirmee, before he can acquire a standing in court, must originally have had or must subsequently have placed upon his title or claim an additional mark of a public authority besides this act of Congress;-that he must evince his right or claim by some concession, survey, or permission to settle, cultivate, or possess, or some recognition of his claim under the provisions of some act of Congress by some officer of the executive department, indicative of its location and extent. The laxity of the legislation in the act of 1812 is painfully evident, when the fact is declared that the large and growing cities of the State of Missouri have their site upon the land comprehended in this confirmation. Nevertheless an attempt to correct the mischief would probably create more confusion and disorder than the act has produced.

The act, in the form in which it exists, was adopted by Congress upon the solicitation and counsel of citizens of Missouri, interested in the subject and well acquainted with the conditions of its population. The towns and villages named in it

Guitard et al. v. Stoddard.

were then, and for many years continued to be, small, and the property of no great importance. During this time conflicting rights and pretensions were adjusted, facts necessary to sustain claims to property ascertained, and the business and intercourse of the inhabitants accommodated to its conditions. The act itself, with all the circumstances of the inhabitants before and at the time of its passage, have formed the subject of legal judgments and professional opinions upon which mighty interests have grown up and now repose. This court fully appreciates the danger of disturbing those interests and of contradicting inose opinions and judgments.

The act of 1812 makes no requisition for a concession, survey, permission to settle, cultivate, or possess, or of any location by a public authority as the basis of the right, title, and claim, upon which its confirmatory provisions operate. It may be very true that there could have been originally no legitimate right or claim without some such authority. Congress, however, in this act, was not dealing with written or formal evidences of right. Such claims in Missouri have been provided for by other acts. These pretensions to town and village lots formed a residuum of a mass of rights, titles, and claims, which Congress was advised could be equitably and summarily disposed of by the abandonment of its own rights to the property, and a reference of the whole subject to the parties concerned. Congress afforded no means of authenticating the rights, titles, and claims of the several confirmees. No board was appointed in the act to receive the evidence nor to adjust contradictory pretensions.

No officer was appointed to survey or to locate any individual right. All the facts requisite to sustain the confirmation what were village or town lots, out lots, common field lots, or commons - what were the conditions of inhabitation, cultivation, or possession, to bring the claimant within the act, were referred to the judicial tribunals. The act has been most carefully and patiently considered in the Supreme Court of Missouri, and conclusions have been promulgated, which comprehend nearly all the questions which can arise upon it.

"we are

In Vasseur v. Benton, 1 Mo. Rep. that court says, of opinion that the claims to town or village lots, which had been inhabited, cultivated, or possessed, prior to the 20th of December, 1803, are by the express words of the act ipso facto confirmed as to the right of the United States." In Lajoye v. Primm, 3 Mo. Rep. 368, the court says, "the great object of the act was to quiet the villages in their titles to property (so far as the government was concerned) which had been acquired in many instances by possession merely, under an express or implied permission to settle, and which had passed from

Guitard et al. v. Stoddard.

hand to hand without any formal conveyance. In such cases possession was the only thing to which they could look; and taking it for granted that those who were found in possession at the time the country was ceded, or who had been last in possession prior thereto, were the rightful owners-the confirmation was intended for their benefit." In Page v. Scheibel, 11 Mo. 167, the same court says "the whole history of the progress of settlements in the French villages, so far as it has been developed in the cases which have come up to this court, shows that the villagers did not venture to take possession of the lots, either for cultivation or inhabitation, without a formal permission of the lieutenant-governor, or the commandant of the post. These permissions, it is also probable, were most generally in writing, and accompanied by a survey made by an officer selected and authorized by the government.

But the title of the claimants under this government does not depend upon the existence or proof of any such documents. Congress did not think proper to require it. In all probability, the fact that possession, inhabitation, and cultivation could not exist under the former government without such previous permission from the authorities of that government, was known to the framers of the act of 1812, and constituted the prominent reason for dispensing with any proof of this character in order to make out a title under that act. However this may be, the act requires no such proof, but confirms the title upon possession, inhabitation, or altivation alone, without regard to the legality of the origin of such title."

We have quoted these portions of the reports of those cases to express our concurrence in the conclusions they present.

We shall now inquire whether it was necessary for the confirmee to present the evidence of his claim under the act of 1824, (4 Stat. at Large, 65,) supplementary to the act of 1812?

This act makes it the duty of the claimants of town and vil lage lots "to proceed, within eighteen months after the passage thereof, to designate them by proving the fact of inhabitation, &c., and the boundaries and extent of each claim, so as to enable the surveyor-general to distinguish the private from the vacant lots." No forfeiture was imposed for a non-compliance. The confirmee by a compliance obtained a recognition of his boundaries from the United States, and consequently evidence against every person intruding, or claiming from the government ex post facto. The government did not by that act impair the effect and operation of its act of 1812.

Under the act of 1812 each confirmee was compelled, whenever his title was disputed, to adduce proof of the conditions upon which the confirmation depended. As the facts of inha

Guitard et al. v. Stoddard.

bitation, possession, and cultivation at a designated period, are facts in pais, it followed as a matter of course that parol evidence is admissible to establish them. In the case of Hickie v. Starke, 1 Pet. 98, a question arose upon an act of Congress which confirmed to "actual settlers" within a ceded territory all the grants legally executed prior to a designated day, and this court held that the fact of "a settlement on that day" must be established, and proof of occupancy and cultivation was adduced. In the city of Mobile v. Eslava, 16 Pet. 235, certain water lots were confirmed to the proprietors of the front lots adjacent thereto, who had improved them before the passage of the act of Congress, and this court sustained the title upon parol proof of location and improvements. The court said "being proprietor of the front lot and having improved the water lot opposite and east of Water street, constitute the conditions on which the right, if any, under the statute vests. In his charge to the jury, the judge laid down these conditions in clear terms; and instructed the jury, if the facts brought the defendant within them, that they should find against the plaintiffs. The jury did so find, and this is conclusive of the facts of the case."

The question of boundary under the act of 1812, as it was decided in Mackay v. Dillon, was left open to the settlement of the respective claimants by litigation, in the courts of justice, or otherwise. Nor has this court, in any case, decided that statutes, which operate to confirm an existing and recognized claim or title with ascertained boundaries, or boundaries which could be ascertained, are inoperative without a survey, or made one necessary to the perfection of the title. A survey, approved by the United States, and accepted by the confirmee, is always important to the confirmee; for, as is said by the court in Menard's Heirs v. Massy, 8 How. 294, it is 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 land-office. This consideration depends upon 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."

The cases of Harrison v. Page, 16 Mo. 182; Gamache v. Piquignot, 17 Mo. 310, which has been affirmed at the present session of this court; and Soulard v. Clarke, are in harmony with the views we have expressed upon the latter branch of the instructions of the Circuit Court.

We think it proper to state, that we express no opinion upon the effect of the evidence to establish the plaintiff's title as a subsisting title, and none upon the claim to such of the land as lies

Irwin v. The United States.

beyond the boundary line, settled by the survey of the United States under the first section of the act of 1812.

The judgment of the Circuit Court is reversed and the cause remanded.

Order.

This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the District of Missouri, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court, in this cause, be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court with directions to award a venire facias de novo.

JAMES IRWIN, Appellant, v. THE UNITED STATES.

On 6th November, 1836, W. F. Hamilton, William V. Robinson, and wife, by deed, conveyed to the United States "the right and privilege to use, divert, and carry away from the fountain spring, by which the woollen factory of the said Hamilton & Robinson is now supplied, so much water as will pass through a pipe or tube of equal diameter with one that shall convey the water from the said spring, upon the same level therewith, to the factory of the said grantors, and to proceed from a common cisteru or head to be erected by the said United States, and to convey and conduct the same, by tubes or pipes, through the premises of the said grantors in a direct line. &c. &c.

The distance to which the United States wished to carry their share of the water being much greater than that of the other party, it was necessary, according to the principles of hydraulics, to lay down pipes of a larger bore than those of the other party, in order to obtain one half of the water.

The grantors were present when the pipes were laid down in this way, and made no objection. It will not do for an assignee, whose deed recognizes the title of the United States to one half of the water, now to disturb the arrangement.

Under the circumstances, the construction to be given to the deed is, that the United States purchased a right to one half of the water, and had a right to lay down such pipes as were necessary to secure that object.

THIS was an appeal from the Circuit Court of the United States for the Western District of Pennsylvania, sitting as a court of equity.

The facts were these:

On 6th November, 1836, W. F. Hamilton, William V. Robinson, and wife, by deed, conveyed to the United States "the right and privilege to use, divert, and carry away from the fountain spring by which the woollen factory of the said Hamilton & Robinson is now supplied, so much water as will pass through