ISABELLA L. MACKAY, EXECUTRIX OF JAMES MACKAY, ZENO MACKAY, GEORGE ANTHONY MACKAY, JAMES BENNETT MACKAY, REUBEN-COLEMAN AND ELIZA LUCY, HIS WIFE, WILLIAM COLEMAN AND AMELIA ANN, HIS WIFE, LOUIS GUYON AND MARY CATHERINE, HIS WIFE, DAVID BOWLES AND JULIA JANE, HIS WIFE, AND ISABELLA LOUISA MACKAY BY ISABELLA L. MACKAY HER GUARDIAN,
v.
PATRICK M. DILLON.
Supreme Court of United States.
*445 The cause was argued by Mr. Lawless, for the plaintiff in error, and Mr. Gamble and Mr. Bates, for the defendant in error.
Mr. Justice CATRON delivered the opinion of the court.
The record before us is brought here by a writ of error to the Supreme Court of Missouri, under the twenty-fifth section of the judiciary act. The action was an ejectment for land, to which each party claimed title by virtue of an act of Congress confirming interfering Spanish claims.
The evidence on part of the plaintiffs having been introduced in the State court of original jurisdiction, the defendant offered to read copies of certain documents and depositions taken in 1806 and 1825, certified by the United States recorder of land titles in the State of Missouri, as truly copied from the originals on file and of record in his office. These were objected to, on the part of the plaintiffs, as incompetent to go the jury; the objection was overruled, the evidence admitted, and an exception taken. And the first question is, was the evidence thus offered competent? It is set out in the report of the case, and need not be further described. As the objection draws in question the nature and character of the evidence, it is deemed proper to state here what they are; less for the purpose of disposing of the ruling of the court on this point, than as preparatory to the decision of others that follow, each involving the effect and character of the evidence more or less.
By the third article of the treaty of 1803, by which Louisiana was acquired, the inhabitants were to be maintained and protected in the free enjoyment of their property in the ceded territory. To carry the treaty into execution, as regarded titles and claims to land, Congress, by the act of March 2d, 1805, provided that a board of commissioners should be appointed by the President, and also a recorder of land titles; which was accordingly done. The board for Louisiana (now Missouri and Arkansas) sat at St. Louis, as at that place the recorder's office was established, and is yet kept.
By the fourth section of the act, all those asserting claims to land founded on concessions or other assumptions of right to obtain titles from the United States, and which claims originated with the French or Spanish governments prior to the 20th of December, 1803, were required, on or before the 1st day of March, 1806, to deliver to the recorder written notices of claim, stating the nature and extent thereof, together with a plat of the tract claimed, and written evidences tending to establish the right. The notice, plat, and evidences were to be recorded in books to be kept by *446 the recorder for that purpose. This recorded notice and evidence formed the foundation in each case for the action of the board; although other evidence might be required by it, or be adduced by the claimant. The board was to decide in a summary way, according to justice and equity, on all claims thus filed.
It was directed to appoint a clerk, whose duty it should be to enter in a book full and correct minutes of the proceedings and decisions of the board; together with the evidence on which each decision was made; the book, on the dissolution of the board, was to be deposited with the recorder of land titles; but the clerk was first to make two copies, one of which he was to forward to the Secretary of the Treasury, and the other was to be deposited with the surveyor-general in said district. According to this law, the inhabitants of St. Louis filed their notice of claim, plat, and evidences, in 1806, asking to have the town common confirmed to them.
By the first section of the act of 1812 (June 13th), Congress confirmed the claim to commons adjoining and belonging to St. Louis; with similar 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 by the survey, 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 the courts of justice, or otherwise.
The confirmation extended to town lots, out lots, common filed lots, and commons in, adjoining, or belonging to the several towns or villages. And the act of 1812 made it the duty of the principal deputy-surveyor of the territory, as soon thereafter as might be, to survey, or cause it to be done, and marked, the out-boundary lines of the several towns, so as to include the out lots, common filed lots, and commons; of this out-boundary survey, he was to make plats, and transmit them to the surveyor-general, who was to forward copies to the commissioner of the general land-office and to the United States recorder of land titles in Missouri. The object of this proceeding, on part of the government, was to sever the confirmed claims in a mass from the remaining lands of the United States, and others outside of the boundary, and nothing more.
The act of May 26th, 1824, supplemental to that of 1812, authorized further proofs to be taken before the recorder in regard to town lots, out lots, and common field lots, confirmed by the act of 1812, as respected inhabitation, cultivation, or possession, and the boundaries and extent of each claim; but the provision does not *447 extend in terms to the commons. In virtue of this act, however, the evidence found in the record, and taken before the recorder in 1825, was filed in the recorder's office further to establish the extent of the town commons.
The objection taken in the State Circuit Court was to the whole evidence certified from the recorder's office, without discrimination, and the question turns on its competency for any purpose.
The powers of the Supreme Court are limited in cases coming up from the State courts, under the twenty-fifth section of the judiciary act, to questions of law, where the final judgment or decree draws in question the validity of a treaty or statute of the United States, &c., or where their construction is drawn in question, or an authority exercised under them; and as the admission of evidence to establish the mere fact of boundary in regard to the extent of grant cannot raise a question involving either the validity or construction of an act of Congress, &c., this court has no jurisdiction to consider and revise the decision of a State court, however erroneous it may be in admitting the evidence to establish the fact. But when evidence is admitted as competent for this purpose, and it is sought to give it effect for other purposes which do involve questions giving this court jurisdiction, then the decisions of State courts on the effect of such evidence may be fully considered here, and their judgments reversed or affirmed, in a similar manner as if a like question had arisen in a supreme court of error of a State, when reversing the proceedings of inferior courts of original jurisdiction, and on this principle we are compelled to act in the present suit, when dealing with the instruction given on behalf of the defendant.
2. The following instructions were next asked on part of the plaintiffs, and refused: "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 and 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."
The survey referred to was the one made in 1806, at the instance of the inhabitants of St. Louis, for the purpose of presenting their claim to commons in due form to the board. It was in its nature a private survey, not binding on the United States; and to avoid any implication to the contrary, the act of February 28th, 1806, was passed, which extended the powers of the surveyor-general of Louisiana over the land in controversy, and made it his duty to appoint principal deputies; over these, the commissioners at St. Louis had power given to them, by which surveys could be ordered of private claims. When the board desired surveys to be made, they ordered them to be executed at the expense of the party interested. *448 And the law declares, that every such survey, as well as every other survey, by whatever authority heretofore executed (those of legal and complete titles only excepted), shall be held and considered as private surveys only; and all tracts of land, the titles to which may be ultimately confirmed by Congress, shall, prior to the issuing of patents, be resurveyed, if judged necessary, under the authority of the surveyor-general. It follows, that Mackay's survey of 1806 had no influence on the title of either party, and that the instructions asked were properly refused.
3. The following instruction was asked for, and given, on part of the defendants: "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 of 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 act of Congress of the 4th of July, 1836."
It assumes, as matter of law, that the act of 1812 adopted Mackay's survey, and the evidence given in its support; that they are part of the grant, as to its extent and legal effect; and conclusive as against the plaintiff' confirmation. On the trial, both parties admitted that the land in dispute lies within the survey of 1806, and therefore the instruction took the case from the jury, and cut off all proof to the contrary of this being the true boundary; whereas the survey was a mere private act, as already stated, and concluded nothing for either side; and in holding the contrary the State court erred, and for which the judgment must be reversed.
By what description of surveys the United States are bound, and those claiming title under them governed, we have already, during the present term, been called on to decide, in the case of Jourdan v. Barrett (ante, p. 169), and need not repeat. Nor is it necessary to inquire here what the effect of a legal survey of the St. Louis common is, as the question has been directly presented in the cause of Les Bois v. Bramell, heard and decided concurrently with this, and on the same arguments, and to the opinion in which, in this respect, we refer.