Clark v. Hammerle , 36 Mo. 620 ( 1865 )

Holmes, Judge,

delivered the opinion of the court.

The plaintiff claimed title to the land in controversy as a part of the common field lot of the cut de sac common field of St. Louis, as having been confirmed to Joachim Roy’s legal representatives by the act of Congress of the 13th of June, 1812, on the ground of inhabitation, cultivation or possession prior to the 20th of December, 1803, and he showed a derivative title from them to himself. To prove this title he gave in evidence certified copies of the registry of claims proved before the Recorder of land titles under the act of 26th of May, 1824; the registry of certificates of confirmation or list of claims proved; an official survey by the Surveyor General of the lot so proved, and a certificate of confirmation issued by the Recorder of land titles in 1857. Documents of like character with these have so often been held to be admissible as prima facie evidence of such titles that it is not deemed necessary now to discuss the subject further. (Macklot v. Dubreuil, 9 Mo. 473; Bichler v. Coonce, 9 Mo. 347 ; Soulard v. Allen, 18 Mo. 590.)

The two documents first named speak of this claim as one and a half arpens in “front by about thirty in depth,” bounded north by Guión, south by Tabeau, east by Aug. Chouteau’s mill tract, and west by Chas. Gratiot. The lot appears to have been surveyed according to the calls for boundaries,rejecting the call for the quantity of “about thirty arpens in depth,” so far as that call was repugnant to the calls for fixed boundaries. This was unquestionably the correct mode of surveying the lot proved ; and the certificate of confirmation which was issued thereon by the Recorder of land titles, in 1857, very properly conformed to the official ■survey so made.

These proofs showed title in Roy’s representatives to the lot described in the survey and certificate of the date of the act of 13th June, 1812.

The defendant claimed title to the same land under a New Madrid location of the date of 1818. Such title, though in-. ferior in nature, placed him in a position that enabled him to dispute the correctness and validity of the prima facie superior title of the plaintiff. He undertook to invalidate this title by evidence offered for the purpose of showing that the survey of the lot and the certificate of confirmation were in- ■ correct in respect of the location, extent and boundaries of the lot, and that the lot claimed and cultivated or possessed by Roy prior to 1803 had been abandoned by him and his legal representatives before the 13th day of June, 1812.

Concerning the location, extent and boundaries, he offered in evidence a letter from Wm. Carr Lane to Surveyor General Milburn, dated June 20, 1840, while Lane was owner of the plaintiff’s title, in which he assertéd as of his own certain knowledge, that the proof taken before the Recorder on page 116 of No. 2 of his Minutes, called for forty arpens in depth instead of thirty, before the record was altered by erasure, and that the claimant’s name (Bgon) and the word forty had been erased, and a subsequent interlineation made of another name (Roy) and the word thirty, together with 'certified copies of these Minutes (No. 2, pp. 49 and 50) showing the claim of Joachim Roy’s legal representatives for a lot of one and a half by about forty arpens in depth, bounded north by a lot formerly owned by Mad. Lecompte; east by widow Camp’s legal representatives, south by Tabeau, and west by land unknown near to Gratiot’s, and the ex tract from the registry of certificates above mentioned, which were admitted, and also the depositions of Francis and Eustache Oailloux thereto annexed, containing the testimony taken by the Recorder on proof of the cultivation and possession of the lot so claimed, which were excluded. Some other documentary evidence, relating to adjoining claims, was admitted. The testimony of Adolph Renard, offered for the purpose of showing that certain marginal annotations on page 116 of Hunt’s Minutes were in the handwriting of Recorder Hunt, was excluded. There was some testimony which tended to show that the cul de sac common fields were embraced within the western part of Chouteau’s mill tract, and that they did not cover the land in dispute. The jury have passed upon the question of location, upon the evidence that was before them, and we need concern ourselves only with that which was excluded.

In the former decision in this case, (27 Mo. 55,) these erasures and alterations were not regared as in any way defeating the right and title of Roy and his representatives, who showed a confirmation independent of them, and we do not see how they could have any material effect upon the title shown by the plaintiff. The marginal annotations were held to be no evidence whatever as between these parties, and they will be regarded as wholly immaterial here. ’So far as these erasures and interlineations furnished evidence that the claim had a depth of forty instead of thirty arpens, these wéré clearly not evidence for the plaintiff; but there was ample evidence without them to authorize the survey,,as-it was made'. So'ifar as they tended to show that one Rión. had . claimed the same lot before the y.j ,. hi Recorder, they were immaterial to the issue, and as tending to show another and different lot, the defendant had the benefit of the evidence with the jury. There was no evidence that Rion had ever obtained a title to this lot. The evidence amounted to very little towards rebutting the plaintiff’s title.

The defendant complains of the exclusion of the depositions or testimony of the two Cailloux. Eor what purposes and to what extent these depositions are admissible in evidence, the previous decisions of this court are by no means clear, nor shall we now undertake to lay down any rule on the subject. It appears that in a former trial their depositions were read in evidence as a part of the documents offered by the plaintiff, and this court held that being thus before the jury, they were open to the defendant for what they were worth as evidence of abandonment by the two Cailloux, but that in themselves they were not admissible evidence of the facts stated in them. Here they were offered by the defendant, and as we think rightly excluded.

There was little or no evidence before the jury which had any tendency to prove abandonment. Roy died in 1801, leaving the lot to Yeronique G-uitard. She died in 1808, leaving it to the two Cailloux. It was confirmed to Roy’s representatives in 1812, and in 1825 they brought the claim before the Recorder of land titles.

The Spanish law of abandonment continued in force until 1816, and any abandonment that could affect this lot must have taken place before 1812. To constitute abandonment there must be a departure of the owner corporeally from the land, with the intention that it shall be no longer his. Corporeal or actual possession need not be-retained; but if the owner retain the property of it in his mind, no other person has a right.to enter, and it is not abandoned. (Landes v. Perkins, 12 Mo. 256; Fine v. Public Schools, 30 Mo. 166.) The intention to abandon may be inferred from facts and circumstances which are competent to-go to the jury as evidence from which that fact may be rationally inferred by the jury; and it is pt^uliarly a question of fact for the jury.Ceasing to cultivate, mere inaction, removal to another place, . is not enough, without some act of disclaimer or other fact importing and showing a positive intention to abandon all claim of ownership. (Page v. Schiebel, 11 Mo. 183.) Where the owner went to France and signified his intention never to return, that was held to be good evidence of abandonment (Salle v. Primm, 3 Mo. 530); and where the owner quit his occupancy, removed his mill from the land, and in 1808 made a sworn inventory, as an insolvent, which did not contain the lot, these facts were held to be evidence for the jury. (Barada v. Blumenthal, 20 Mo. 162.)

We find no evidence in this record of any facts of this nature, which can be said of themselves to import or to have any direct tendency to show an intention on the part of any one of the successive owners and claimants, dux-ing the period of time when they were ownex’s prior to 1812, to abandon their claim to this lot. The possession of land is presumed to be with the owner of the title until the contrai’y is made to appear. Even if the depositions of the two Cailloux had been admissible in evidence, they could have no proper effect to prove an abandonmeixt of this lot by them duxúng the period between 1808 and ,1812, when they were owners and might have abandoned their claim. Tlxe mere fact that they stated in their testixnoxxy, apparently taken in proof of the claim of Rion, that they had no interest in the lot, if it had been in fact the same lot as that of Roy, would import no more than that if they were then the oivners of it, they were not at that moment aware of the fact.

The instructions given for the plaintiff laid the case fairly before the jux*y on the questions of title, of identity, and of abandonment. It is objected that they were too narrow, and confined the question of abandonment to Roy alone. It may ibe answered that there was no evidence of any abandonment-by his representatives on which to predicate any further instruction in the matter; and the instructioñs which were ,refused for the defendant, on the same subject, were lightly enough ■ refused, for the reason that there was no fou-ndation in the evidence on which such instructions could justly be predicated.

The fifth and sixth instructions asked by defendant had no basis in the law or the evidence, and were properly refused. The plaintiff had shown a complete prima facie title: the defendant had shown nothing that could invalidate it, and nothing remained but the matter of the true location, and on that the jury was to pass as a matter of fact. The first instruction was correctly refused for the same reason. (Page v. Scheibel, 11 Mo. 167; Guitard v. Stoddard, 16 How. U. S. 510.)

The report of the Surveyor General to the Commissioner of the General Land Office, detailing the history of his operations in making surveys, was properly excluded. The official surveys of the lots in question were the proper evidence of the final action of the Surveyor General on the subject of these 'surveys.

The case appears to have bean fairly submitted to the jury, upon correct instructions as to the law of the case, and there being no material error injuriously affecting the rights of the defendant, the verdict must be allowed to stand.

Judgment affirmed.

Judge Wagner concurs;

Judge Love lace did not sit.