dissenting.
This was an action of ejectmeht, to recover a lot of ground, in St. Louis county, lying south of the river Des Peres, and embraced within a survey of the supposed commons of the town of Carondelet. The plaintiff held a lease for ninety-nine years, from the board of trustees of Carondelet.
The town of Carondelet was incorporated in 1832, by the County Court of Saint Louis, by virtue of the authority vested in said court, by an act of the General Assembly, approved 16th January, 1825, entitled, “An Act to provide for the incorporation of towns.”
The lease made to the plaintiff (below) was in the name of the “Board of Trustees of the Town of Carondelet,” and was by virtue of an act approved December 22d, 1814, entitled, “An Act concerning Commons.” The town was incorporated by the name of “ The Inhabitants of the Town of Carondelet.”
It was admitted, that the defendant, at the commencement of this suit, was in *597possession of that portion of the lot described in the declaration as claimed and laid off by the inhabitants of the town of Carondelet as commons, which was included within the lines of the survey of the confirmation to Gabriel Cerre, under a concession made to him in 1789, which portion contained 28é acres, according to the plat and survey made by order of the court in this case.
The title of the town of Carondelet to commons, under which plaintiff claimed, rested on the proceedings before the recorder of land claims and the board of commissioners, and the act of 13th June, 1812, all of which are set forth at large in the bill of exceptions, and appear to be, in substance, as follows: — .
1st: On the 7th of June, 1808, the inhabitants of Carondelet filed with the recorder of land claims for the territory of Louisiana, a notice of their claim, which was as follows: — “Take notice, that we, the inhabitants and settlers of the village of Vide Poche, in the district of Saint Louis, claim title to 6000 arpens of land, situate adjoining said village, by virtue of a concession from Don Zenon Trudeau, lieutenant-governor of Upper Louisiana, dated 7th December, 1796.” This notice was accompanied with the documents alluded to therein, to wit —
2d: The petition of Jean B. Gamache, on behalf of the inhabitants of the village of Carondelet, asking of the lieutenant-governor, Trudeau, an extension of their common fields, so as to embrace a tract of land bounded by that of Benjamin Constant, and the Mississippi and the River Des Peres, lying north of said last-mentioned river.
3d: To this petition the lieutenant-governor replies, that the land petitioned for has been reserved for the necessary supply of fire-wood to the village, and the demand of Gamache could not take place: “ JLinsi que ioute concessions, accordies dans la direction de la ligne prise a toute des terres du dit village, et courani par allelement an Mississippy, cent cinque arpens plus has.” (Nor could these concessions take place, which had been granted in the direction of a line taken from the end of the village common fields, and running parallel to the Mississippi, one hundred and fifty arpens lower down.)' — The date of this answer, or concession, was, 7th December, 1796.
4th: The certificate of A. Soulard, dated 25th of December, 1797, stating, that on the 21st December, by virtue of an order directed to him by Mr. De Treget, captain-commandant of said village, enjoining the inhabitants to make known the line of a tract of land which had been granted to them, under date 7th December, 1796, which line was to be parallel with those of Antoine Reilhe and Alvarez,, he had proceeded, in the presence of said inhabitants, to make said survey. By consent of said inhabitants, he commenced at the “last butt,” set at the extreme part or depth of their land, which had been previously surveyed by Mr. Pierre Chouteau, by virtue of an order from the lieutenant-governor. The course of the western line of the common fields he found to be S. 28° W. The certificate proceeds thus : “I followed the same course (i.e., S. 28° W.) 23 arpens 3§ perches, at which distance I found the river De Peres. The end of the line, on the border of said river, has been marked (bornee) with a stone, having for witnesses two flints and a bullet of lead flattened; the land of the said Alvarez being about twenty-four feet distant from said stone, m running the line further in *598a parallel direction. And as this may serve to the said inhabitants as proof thereof, I have delivered these presents at St. Louis, of Illinois, the 25th December, 1797. Antoine Soulard.”
5th: A second certificate of Soulard, given the 18th February, 1806, that the inhabitants of Carondelet had again called upon him to measure, or cause to be measured, a part of their commons; that he had deputed Mr. B. Cousin to execute this survey, but that it had not been done, in consequence of finding his compass out of order.
6th: In addition to these documents, there were before the commissioners the depositions of Auguste Chouteau and J. B. Provenchere, conducing to [show a claim and user of a common, by the villagers of Carondelet, as far back as 1770.
On the 2d of January, 1812, the board of commissioners rejected this claim.
In addition to these proceedings before the board of commissioners, there was given in evidence, on behalf- of plaintiff, a plat and notes of a survey, made by Joseph C. Brown, in March, 1834, in pursuance of instructions from the surveyor-general’s office, dated February 10, 1834. This survey was a continuation of the western line, as commenced, or supposed to .be commenced, by Soulard in 1797, and embraced 9,905T3s9o- acres.
Joseph C. Brown was also introduced as a witness in relation to said survey, and stated, that he found marks of an old survey, but nota Spanish survey, below the river Des Peres; also gave it as his opinion, that to run a line parallel with the Mississippi, means a line parallel to the general course of said river; and to run such a line, he would, to embrace the quantity called for, run it parallel to the general course of the river, making due allowance for the loss on the east, occasioned by the windings of the river; but that it was' his opinion that the expressions in Trudeau’s grant called for an extension of the western line of the common-field lots, and so he had made the survey, and had, in this respect, acted in conformity to the instructions of the surveyors general.
William Milburn, who had been a surveyor-general under the federal government, at St. Louis, also testified, that the extension of the line below the river Des Peres had been originally run by Elias Rector. Witness gave his opinion in relation to the proper construction of the words, “ parallel to the Mississippi,” which corresponded with that of Brown; but stated, that if he had been directed to make the survey, -he would have made it as Brown did, because it had been so commenced by Soulard, under the Spanish government. Witness also stated, that Brown’s survey had been rejected by the commissioner of the general land-office, but no other survey had been made.
The plaintiff also gave in evidence the plat and field notes of a survey made by Elias Rector, some time before 1817, and filed in the surveyor-general’s office.
The plaintiff also introduced in evidence, proceedings before the board of commissioners and recorder, in relation to six claims, which, by the plats given in evidence on the trial, appeared to be within the claim of commons, as surveyed by Joseph C. Brown and E. Rector. .
. 1st. The claim of Julien Chouquette to 640 arpens. This claim was brought to the notice of the recorder'of land titles in 1808, and was founded on improve*599ments, cultivation and inhabitation, from 1798 till 1803, and was confirmed under the second section of the act of Congress of 3d March, 1807.
2d. The claim of Gabriel Constant to 35 arpens. This was a concession of Lieutenant-governor Trudeau on September 4th, 1795, and it was surveyed by Soulard on 15th April, 1796: it lies entirely north of the river Des Peres. This claim was rejected by the board of commissioners in 1814, but was after-wards recommended for confirmation by the recorder of land titles in 1813, and confirmed by act of 29th April, 1816.
3d. The claim of Gabriel Cerre. This was a concession from Manual Perez, on March 15th, 1789, upon conditions that it was improved within a year from the date of the grant. This claim was rejected by the board of commissioners in 1811. In 1833, it was recommended for confirmation, and confirmed by the act of July 4, 1836.
4th. Pierre Delor de Treget. This claim was filed with the recorder in 1812. It was 'a petition to Lieutenant-governor Trudeau for 400 arpens on the Gravois, and on the 6th December, 1796, the lieutenant-governor ordered the surveyor to put De Treget in possession, provided the land belonged to the king’s domain, and was prejudicial to no one. This was surveyed, for the first time, by Joseph C. Brown, in May, 1821, and was confirmed by the act of July 4, 1836.
5th. J. B. Martigny. This claim was 12 arpens in front, and founded on a concession from Lieutenant-governor Cruzat in 1783, and confirmed by act of Congress of July 4, 1836.
6th. The claim of Sophia Bolaye, alias Boli, was filed with the recorder of land titles in 1812. It was founded on a petition to Lieutenant-governor Trudeau in 1796, for 150 arpens, to which the lieutenant-governor replied, by ordering the surveyor to put her in possession of the land prayed for, provided it was a part of the king’s domain. This was surveyed, for the first time, in 1821, by Joseph C. Brown, and was confirmed by the act of 1836.
The plaintiff also introduced the proceedings before the board of commissioners on the claim of Eugenid Alvarez, which embraced 462 acres 12j perches, granted by Trudeau in 1796, and confirmed in 1812, and the claim of John Colgin to 403 arpens, granted by Trudeau in 1797, with a view to show, from the papers filed in support of said claims, a recognition of the existence of a common south of the river Des Peres.
The plaintiff also proved, by one. Pierre De Lor, that he was present when Soulard run the lines of the commons in 1796; that Soulard commenced at the south-west corner of the common fields of Carondelet, and run southwardly to the river Des Peres, and went no further, because of rain and high water.
The defendant gave in evidence, the instructions from the commissioner of the general land-office, dated January 20, 1841, to William Milburn, surveyor-general, enclosing an opinion of the solicitor of the treasury, and a copy of a communication from the secretary of war — from which it seemed, that the officers above named did not approve of the survey of Joseph C. Brown, and directed a survey to be made, so as to give the 6000 arpens claimed by the inhabitants of *600Carondelet, but without interfering with private claims, or the 1700 acres reserved by government for the barracks.
The defendant also gave in evidence the plat and field notes of the claim of Gabriel Cerre, under which he held, and which was confirmed by act of Congress of 4th July, 1836.
The court instructed the jury, at the instance of the plaintiff, that “ The act of Congress, approved June 13,1812, entitled, ‘An act making further provisions for settling the claims to land in the territory of Missouri,’ and the act of Congress, approved 27th January, 1831, entitled, ‘An act further supplemental to an act, entitled, ‘An act making further provisions for settling the claims to land in the territory of Missouri,’ passed 13th June, 1812, confirmed to the inhabitants of the village of Carondelet, alias Vide Poche, all the land lying south of the common fields of Carondelet and the village of Carondelet, and between the Mississippi river and a line run from the south-west corner of said common fields, south 28° west, and extended same course one hundred and fifty arpens, saving and excepting therefrom all claims, theretofore confirmed by the board of commissioners, for adjusting and settling claims to land in the territory of Missouri, and all complete grants within the same limits, made by the French or Spanish governments, while those governments respectively had possession of this country, and such confirmation takes effect from the approval of said acts of Congress.”
Other instructions were given, but the above appears to embrace the point upon which this controversy mainly depends.
It was conceded, that the claims to commons, made by the village of Carondelet, as well as the other villages enumerated in the act of 13th June, 1812, were confirmed by that act; but in this case it is contended,- that the claim was indefinite, not set forth by metes and bounds, and consequently, until some further action on the part of the government, no particular tract can be claimed, by virtue of the act, upon which the inhabitants can maintain ejectment. The whole question, then, resolves itself into this: was there a claim to a specific quantity of land, by metes and bounds, brought to the knowledge of the federal government or its officers, before the passage of the act of 13th June, 1812, and upon which that act could .operate ?
In the case of Bird vs. Montgomery, (6 Mo. Rep., 510,) and Mackay’s Heirs vs. Dillon, (7 Ibid., 8,) in which the titles ten the St. Charles and St. Louis commons, under the act of Congress above named, were investigated and passed upon by this Court. The principles upon which that .act must be construed -were considered and decided. It was the design of Congress, According to the construction there given to this act, to confirm the claims of these villages, as they were presented to, and acted on, by the board of commissioners of land claims in Upper Louisiana, without reference to the merits or demerits of th.e original Spanish title.
In this view of the subject, it cannot be material to inquire into the character of the concession by Trudeau, in 1796.
Whether the expressions of the lieutenant-governor, in declaring that land *601within certain limits could not be granted to individuals, because it had been reserved for the supply of the necessary wood to the village, are to be regarded only as indications of a design, at some future time, to make a definite grant, or whether the answer to Gamache must be viewed as a grant to the extent therein specified, so far as the lieutenant-governor had the power to grant, might have been material questions in an inquiry into the validity and extent of this concession, under the laws and usages of the Spanish government. The act of 1812 precludes all such investigations; it relinquishes the title of the United States to such commons as were claimed, without reference to the strength of the claim, which might have been set up under the Spanish authorities.
The report of the board of commissioners was sent to Washington, early in the winter of 1812, and it was accompanied by two official letters from one of the commissioners, addressed to the secretary of the treasury, and a letter from the secretary of the board, (T. F. Riddick) addressed to the chairman of the committee on public lands. These letters are published in the American State Papers, vol. 2, pages 377, 8, 9. (Duff Green’s edition.) The claims of villages to their commons are placed by Mr. Penrose, (the commissioner referred to) in his communication to Mr. Gallatin, dated March 20th, 1812, in the ninth class, and in relation thereto he says, “The ninth class ought to be confirmed; they would have been under every practice we have seen. Had the Spanish government-continued the possession, usage and custom, according to our construction, could not have existed in that country.” In his letter of the 24th of March, he classes claims to commons under the fifth class, and in relation to the five classes, he says — “As I presume the intention of our government must be, to do such justice to their newly-acquired citizens as would have been by that government of whom they were purchased, there can be no hesitation in confirming or granting such claims as are comprehended in the five'foregoing classes.” In a communication by T. F. Riddick, secretary of the board, dated March 26th, 1812, and addressed to the chairman of the committee on public lands, Mr. Riddick classes the claims to commons, common fields and lands adjacent, in the 49th class, and says, in relation to that class — “ The 49th class will comprise nearly one-fourth in number of all the claims in the territory of Louisiana,, and, if confirmed at once by the outer lines of a survey, to be made by the principal deputy, would give general satisfaction, and save the United States a deal of useless investigation into subjects that are merely matters of' individual dispute. The United States can claim no right over the same, except a few solitary village lots, and inconsiderable vacant spots, of little value, which might be given to the inhabitants for the support of schools.” American State Papers, vol. 2, p. 379.
These communications, whilst they could not be permitted to control, in anywise, the plain meaning and intent of the act, which was reported by the chairman of the committee on public lands, to whom one of them had been addressed, and which was passed into a law on the 13th day of June following, may yet be referred to, in connection with that act, as corroborating the construction which its language bears, and which was, as has been stated, placed upon it in the two cases already determined by this Court. Congress appears to *602have acted in conformity to these suggestions, and accordingly confirmed the “rights, titles and claims to town or village lots, out-lots, common-field lots, and commons,” belonging to the several villages enumerated in the act.
The inquiry, then, which must determine the rights of the parties to this suit, must be confined to the claim which was made by the inhabitants of Carondelet, on or before the 13th of June, 1812. What was this claim P
In 1808, this claim was notified to the recorder, as a claim for 6000 arpens, “by virtue of a concession from Don Zenon Trudeau, lieutenant-governor, dated 7th December, 1796.”
This notice was accompanied by the concession, which appears to be contained in an1 answer of the lieutenant-governor, Trudeau, to the petition of one Gamache, for land adjoining the village common fields, for the purpose of cultivation. In this answer, the lieutenant-governor declares, that the land petitioned for could not be granted, as it was reserved for wood for the inhabitants, nor could any other concessions take place, (avoir lien) in the direction of a line taken from the end of the common-field lots, and running parallel to the Mississippi, one hundred and fifty arpens lower down. In addition to these papers, there was filed before the board of commissioners a plat of survey, made in the year following the date of the concession, (1797) by the Spanish surveyor, Soulard, and purporting to have been made by directions of the lieutenant-governor, at the instance of the commandant of the village, and in the presence of the villagers. This survey ascertained the western line of the commons, no further than the river Des Peres, which was distant 23 arpens 3\ perches from the south-west corner of the common fields — but the survey purported to be made under the decree of the lieutenant-governor, dated 7th December, 1796.
There was also before the board the certificate of Soulard, made in 1806, the purport of which was, that he had been called upon to finish his survey of the commons, but, from accidental causes, it had not been done. By order of the board, it was also ascertained, from a survey made by Joseph C. Brown, that the distance from the S. W. corner of the common fields to the river Mississippi was forty-eight arpens.
Upon these documents, one of three constructions must prevail:
1st, That the commons, as surveyed by Soulard, north of the river Des Peres, and so much more taken in the direction of the line described in the decree of the lieutenant-governor, as will make the 6000 arpens claimed, must be regarded as the extent of the claim confirmed; or,
2d, That the quantity of 6000 arpens must be rejected as description, and the claim be considered, as embracing the whole tract contained within the line running S. 28° W., one hundred and fifty arpens from the S.W. corner of the common fields; or,
3d, The whole claim must be considered as a floating claim for 6000 arpens of land, to be subsequently located, and neither was any common north or south of the river Des Peres, distinctly and definitely claimed, and none, therefore, was by metes and bounds confirmed by the act of Congress.
The last supposed construction of this claim has not been seriously contended *603for, either in the argument of this ease or in the opinions of the various officers of the federal government, which have been given adversely to this claim, and it may therefore he rejected, as without any foundation. The act of 1812 was not a donation of land, or a mere grant de novo. Though, by virtue of that act, the title of the United States is extinguished, it is a recognition of claims, rights and titles, previously in existence, originating under the former government, and which, from motives of sound policy, as well as good faith, this government was induced to confirm. By no fair construction of this law can it be for a moment believed, that this government intended to grant to the town of Carondelet, from motives of mere munificence, a tract of 6000 arpens, to be located wheresoever the caprice of the inhabitants, or of Congress, might suggest.
If the act operated at all, it confirmed a known and ascertained claim —a tract already designated and fixed, leaving nothing for the future action of the government or the claimants. This was clearly the design of the act; it may have failed, because of the uncertain and indefinite nature of the claim supposed to be confirmed; but this, if it be so, was not the fault of Congress, and can be no ground for imputing to them the design of donating to any of their villages a certain quantity of land, without any fixed location.
The first supposed construction of the claim may be considered in two aspects; first, as a claim limited to the tract north of the river Des Peres, and founded, therefore, entirely upon Soulard’s survey, without regarding the quantity claimed or the decree of the lieutenant-governor; and secondly, as a claim to the land embraced by Soulard’s survey, and so much more taken in the direction of the line, as described by Trudeau, as will be necessary to complete the 6000 arpens. This last appears to be the view entertained by the solicitor of the treasury, and sanctioned by the commissioner of the general land-office, as appears from their official opinions, given in evidence before the Court of Common Pleas, by the defendant below. The first construction seems to be the one most strongly insisted on by the counsel, who argued for the plaintiff in error. I regard both these constructions of the claim as unfounded and unwarranted.
The papers filed before the board of commissioners afford satisfactory and conclusive proof, that the claim of the inhabitants of Carondelet was not confined to the survey of Soulard.
The amount claimed seems, of itself, to exclude such a supposition. The board of commissioners ascertained the distance from the S.W. corner of the common fields, to the Mississippi, to be 48 arpens.
If the course of the river Des Peres' had been parallel, or nearly so, to the southern line of the common fields, it was manifest that the land embraced in Soulard’s survey would not much exceed 1100 arpens. It is to be presumed, however, that the inhabitants were aware of the general course of this stream, and must have known, that the quantity lying between that river, (the Mississippi,) the southern line of their common field and village, and the western line run by Soulard, could not much exceed 2000 arpens.
But, apart from this, the survey of Soulard does not purport to be a complete survey; it professes to be a survey of a common, granted by a decree of the *604lieutenant-governor, of the 7th December, 1796; and instead of running the western line 150 arpens, as called for by that decree, it establishes the line no further than 23 arpens S| perches.
The subsequent certificate of Soulard, in 1806, confirms this construction of his survey, and it is impossible to entertajn the belief, that the commissioners of the federal government, who had before them the survey and subsequent certificate of Soulard, and who investigated and rejected this claim, considered it as a claim only for so much commons as had been surveyed by Soulard.
These two supposed constructions of the claim upon which the act of 1812 operated, which have been insisted on in the argument, it is quite apparent, afford the only plausible grounds upon which the Court could be justified in disregarding this claim; for, if it be conceded, that the land surveyed by Soulard was confirmed by the act, and so much more as might be necessary to make up the quantity claimed, to be taken in a line, designated in the decree of Trudeau, it seems to be a concession of the whole claim, as surveyed by Brown.
The only uncertainty in the decree of Trudeau, is in ascertaining the direction of the line mentioned in his decree, and the point from which that line was to start.
If these two ambiguities be removed, there can be no possible difficulty in ascertaining the entire boundaries. If, then, the survey of Soulard be admitted, and regarded as confirmed, it must follow, that his survey rendered that line and starting point fixed and certain, and a complete survey of the tract confirmed would be nothing more than a continuation of this line, to the extent designated in the lieutenant-governor’s decree.
This, I have no doubt, is the proper construction of the claim. Whatever uncertainty there may have been in the description of this western boundary of the commons, has been removed by the survey of the Spanish officer, made within less than a year from the date of the decree. It is no longer a proper subject of inquiry, what is a line parallel to the Mississippi, or what point is meant by the words, ua bout des ierres du dit villages,” since the point and the line were both ascertained and fixed by the proper officer of the Spanish government, under the eye of the commandant, and the construction thus placed upon the language of the decree was sanctioned by the constituted authorities, from 1797, until the transfer of Louisiana, in 1804.
The idea which appears to be entertained now, that this line may be corrected and run, in conformity to what is conceived to be the correct exposition of Trudeau’s grant, so as to embrace the quantity of land claimed by the inhabitants, without interfering with the claims, either of the government or of individuals, seems to be an after thought, and rather a question of future policy, than a judicial interpretation of past legislation. Such arguments and views can have no proper influence in determining what has been already confirmed by the acts of Congress. Either the claim, granted by Trudeau, in 1796, was confirmed, or it was not. If not, it may he a suitable matter for the consideration of the federal government, how far they will now recognize this claim; but if it has been confirmed, to its *605full extent, it only remains for this Court to pronounce accordingly, without regard to the prudence or justice, or expediency of such confirmation.
An argument, in opposition to this claim, has been drawn from the fact, that six private claims lie within the limits of the supposed commons, which have all been confirmed.
A complete answer to this objection is, that it only applies to the original concession under the Spanish government. It relates exclusively to the merits of the Spanish title, and might have been urged in opposition to a confirmation of this title by Congress, but is entitled to no weight in ascertaining the true meaning and extent of the confirmation made in 1812. Congress, we may reasonably suppose, carrying out the liberal policy which had prevailed under the former government, did not look very narrowly into the merits of the claims which they confirmed. This claim, as well as the claims of St. Charles and St. Louis, had been rejected by their board of commissioners, and this rejection was, of itself, sufficient to advise them that doubts hung over their genuineness and validity. Such considerations, however, were overlooked, an<j, desirous of strengthening their newly acquired citizens in their attachment to this government, and of giving them proof, not only of their justice, but of their generosity, they relinquished all their title by the act of 1812, and placed them in a situation which would require them to contend only with private claimants, if any adverse claims existed.
It is, moreover, to be observed, that the Spanish authorities always made their grants upon condition that the lands petitioned for were a part of the public domain, and generally upon conditions, that they were improved within a limited time. No settlements were made without permission from the Spanish officer, and these permissions or concessions were almost a matter of course, but the claimant was not put in possession, if an adverse possession or claim previously existed, or if the land had been previously severed, in any way, from the king’s domain. Of the six claims, included within the limits of the Carondelet commons, one is of''American origin, and the remaining five, with one exception, originated anterior to the decree of Trudeau, in 1796. It would seem, from the decree of Trudeau, that the existence of these claims was not unknown to him; for he declares that the claims conceded, or concessions granted, (concessions, accordees) within the limits decreed for commons, could not take place, (avoir lien) or in other words, would not be perfected into grants. How can any inference be drawn from these claims, which were not confirmed by Congress, with two exceptions, until 1836, unfavorable to the confirmation of 1812 ?
My inference, then, from the documents filed with the board of commissioners, is, that the claim was for a specific tract of land, designated by metes and bounds; and that, upon well settled principles of law, the quantity claimed, cannot be permitted to control, when specific boundaries are fixed; that whatever ambiguity there may have been in the decree of the lieutenant-governor, in relation to the western line mentioned in that decree, was removed by the survey made by his authority in 1797, and this survey being before the board, and communicated to Congress, was sufficient to apprise Congress of the extent and boundaries of the *606lands claimed; and that the act of 13th June, 1812, confirmed the commons to the full extent claimed before the board, by virtue of the decree aforesaid.
In my opinion, therefore, the first instruction given by the Court of Common Pleas was correct, and its judgment should be affirmed.