CARONDELET
vs.
SAINT LOUIS.
Supreme Court of United States.
*182 Mr. Hill, of Missouri, for plaintiff in error.
Mr. Shepley and Mr. Gardenhire, of Missouri, for defendant in error.
*187 Mr. Justice CATRON.
This cause is brought here by writ of error to the final decision of the Supreme Court of Missouri. The proceeding in the court below was according to the State practice, being by petition partly in the nature of a common law action, and also corresponding in other parts to a bill in equity. One issue was presented by the pleadings which was submitted to a jury. The petition states, that, between the years 1796 and 1800, the northern line of the Carondelet common was surveyed and marked by Soulard, the proper Spanish surveyor for Upper Louisiana, pursuant to an order made by the Lieutenant Governor of the province; that the line was run and duly marked in presence of certain of the inhabitants of St. Louis and Carondelet, and published at the church door. It commenced at the bluff bank of the Mississippi river, at a mound called the Sugar Loaf, about four miles south of St. Louis, and two miles north of Carondelet, and run westwardly to the northeast corner of the common-fields of Carondelet; that monuments were established at each end of the line, and a temporary fence was made of brush-wood along the same; and that the inhabitants of Carondelet held and occupied as their northern boundary of the common up to said line, from 1796 until December 20th, 1803, and continued to claim to said line to the time of passing the act of June 13, 1812, by which act it is averred the petitioners took an absolute and fee simple title to the land bounded on the north by Soulard's line. This is the legal title set up, and a recovery of possession is claimed to that line.
The equity asked to be enforced against St. Louis is, that, in 1831, the Surveyor General of Missouri and Illinois caused a survey to be made of the supposed commons of St. Louis, locating the southern boundary of the St. Louis common about one mile south of the Sugar Loaf, and of Soulard's line above described; that, to this line St. Louis claims title and holds *188 possession as part of its common, and which survey is declared to be in fraud of the rights of the inhabitants of Carondelet, and throws a cloud over their title as confirmed by the act of 1812, and they pray to have it set aside and held for naught, because it was made by the Surveyor General without any warrant or authority of law. Defence was made under the general issse.
A question has been raised whether this court has jurisdiction to re-examine the decision of the Supreme Court of Missouri.
The 25th section of the judiciary act provides, that where there is drawn in question the construction of any statute of the United States, and the decision is against the title set up and claimed under the statute, the case may be re-examined in this court, and the decision reversed or affirmed.
Here, title was set up and claimed by Carondelet to a part of its common, according to a true construction of the act of 1812. The claim depends solely on this act of Congress, taken in connection with Soulard's survey; and the decision being adverse to the claim, jurisdiction exists.
Soulard run a single short line from the mound to the east side of the common-fields, and did nothing further. He may have obtruded on the claim of common appertaining to St. Louis, and so the department of public lands must have adjudged, as a different line was adopted. At that early day the land was of too little value to attract attention to this proceeding.
The act of 1812 granted to the inhabitants at the place known as Carondelet their lands used in common, for the pasturage. But the power was reserved by Congress to the Executive authority to survey this common property, by including it in an out-boundary survey, reserving from the common property such portion as the Government saw proper to withhold for military purposes, which was done.
A tract of some nine thousand acres was claimed by this hamlet of people lying south of the village, as commune property, with a comparatively small exception. The southern portion was wholly undefined; it was in the condition of Cere's *189 claim, investigated by this court in the case of Minard's Heirs vs. Massey.
Had the out-boundary line been run according to the reserved power in the act of 1812, the boundary of the common would have been established, there being no other claims to be included. Until a survey was made on the west and south, the villagers had no title to the common on which they could sue, because their grant attached to no land, nor could a court of equity establish a boundary. This court so held in the case of West vs. Cochran, (17 How., 416.) The case is different, under the act of 1812, as to town lots and out-lots, as there stated. Such lots, and the possession of them, could be shown and identified, as matter of evidence. Ib., p. 416. The proposition is, of necessity, true, as respects all grants of specific tracts of land. If there be no boundary, the grant is vague, and cannot be identified, and the grantee takes nothing. The survey here was the completion of the title, although it succeeded the act of granting the land. It defined the grant.
In opposition to this doctrine, it is insisted that, by the act of 1812, a title in fee was taken, and that no public survey was necessary to give title. Such is the established doctrine of this court, as will be seen by the case of Chouteau vs. Eckhart, and Bissell vs. Penrose.
The first of these cases involved the St. Charles common; it had been officially and carefully surveyed, and the boundaries marked by Soulard, the Spanish surveyor. 2 How., 350. No question of boundary was involved in the controversy; and in the case of Bissell vs. Penrose, (8 How.,) there had been a private survey, which was filed with the board of commissioners, as descriptive of the land claimed, and which was held to have been reserved from location by a New Madrid certificate. It is, however, conceded, in the opinion of the court and in Mr. Justice McLean's dissenting opinion, that if no marked bound ary had existed, the confirmation would have been vague, and the opposing entry valid.
This being the condition of the Carondelet common south of the village, a survey and line-marks entered into the title, and were necessary to create one; as to the survey, the land *190 granted must attach. To this end, Elias Rector, a deputy surveyor, in 1816 or 1817, under instructions from the Surveyor General at St. Louis, made a survey of the Carondelet common, fixing the upper corner at the west bank of the Mississippi river, about a mile below and south of the Sugar Loaf Mound; thence running westwardly to the common-fields, southwardly with them so far as they extended; and then completed his survey below the village and fields. On the west and south the lines adjoined public lands, and on the east the tract was bounded by the Mississippi river. It has many lines and corners. The public lands and private claims lying north, west, and south of Rector's survey had to be connected with it, for the purpose of ascertaining the fractions in the townships lying adjoining; and for this purpose, the Surveyor General, in 1834, ordered Joseph C. Brown, a deputy, to trace and remark the lines of Rector's survey, and connect them with the public lands and private claims. This was carefully done; the line marks of Rector's survey were found, and it was remarked. Under Rector's survey, thus identified by Brown's resurvey, Carondelet has claimed title, and now holds in fee a very large portion of its common lands. Its contestation has been as vigorous to uphold Rector's survey on the south as it has been to overthrow it on the north. It must be admitted, that if, when Rector was sent into the field to survey the village common, he had reported to the Surveyor General that, after beginning at a certain point on the river, he had run a mile west, and made a second corner at the fields, and there broke his compass, and did nothing more, that such a survey and return would have amounted to nothing. And this is all that Soulard did, acting under similar general instructions from the Spanish Lieutenant Governor with those given to Rector by the Surveyor General. Both were directed to survey the common, and make due return of their work. No instructions were given where either should begin, or how he should proceed afterwards. The correctness of the survey was to be ascertained, and the work approved by higher authority.
It is objected that the field-notes of Rector's survey were not platted or recorded, and were found in an obscure box in *191 the Surveyor General's office, and that, in fact, there never was an approved survey. Wm. Milburn, who was a clerk in the office as early as 1817, and had been Surveyor General, proves this objection to be groundless. But suppose it was true; then how does the title of the plaintiffs stand? Soulard never made a survey that any authority did or could recognise, as one of the common; if Rector's be a fiction, and Brown's remarking equally void with the survey he traced, then the Carondelet common has no boundary on the north, west, or south, and stands as the village title did when the act of 1812 was passed, which was a vague claim set up by the villagers for 6,000 acres before the board of commissioners; and to which quantity Mr. Secretary Steuart ordered them to be held, but gave no directions how the land should be laid off; and the matter having been brought to the consideration of Secretary McClelland, he adjudged, and properly, that Rector's survey and Brown's remarking of it concluded the Government, and bound the corporation of Carondelet to the whole extent of the survey.
This proceeding having the features of a suit in equity, and also of an action at law to ascertain the better title in one action, and the defendant having relied on the general issue to sustain the defence, offered Rector's survey in evidence, to prove the bounds of the land granted by the act of 1812. It was established as matter of fact, that the survey had been made, and the field-notes duly returned, and that Brown remarked the lines 1834. It also appeared, as matter of fact and of law, from the records of the General Land Office, by the decisions of the officers there, that the department administering the public lands had settled the question in regard to the regularity of Rector's survey, its due return, and approval. And the jury having found that the corporation of Carondelet had, in various modes, recognised, accepted, and held under Rector's survey, as identified by Brown in 1834, we are of opinion that the State court properly rejected the claim set up by the petition, and order the judgment below to be affirmed.
Judgment of the Supreme Court of Missouri affirmed.