# Glasgow v. Baker/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
128 U.S. 560
Glasgow v. Baker
It will be seen at once that there is really no contest about the claim of the plaintiff, unless the defendants have established some break in the continuity of the title which the United States may have received from France by the treaty of 1803, or unless the exceptions in that treaty of private property take the land in controversy out of that class where the right of ownership was vested in the United States by the treaty. We must turn, then, to the defense in this case to ascertain whether the decision of the supreme court of Missouri is sound which held that defense to be a good one. There is no question here as to the jurisdiction of this court, although the case comes from the supreme court of a state; for every matter in dispute arises either under the treaty of 1803, the acts of congress in regard to these lands, or the authority of some officer of the government of the United States exercised over them. The act of June 13, 1812, was passed, as we have stated, for the purpose of prescribing more liberal principles by which the claims of private persons to portions of what otherwise would have been public land should be ascertained and established, and its provisions must be construed in that spirit. The inhabitants of French villages had a system of dividing and distributing the ownership of lands in and about them not common to people of English origin. Collecting themselves together for residence in that part of the settlement which may be called the village proper, they selected small parcels of land for cultivation, which were generally long strips with narrow fronts. These, measured by the French arpent, were usually two or three arpents wide, by forty in length, running backward in the shape of a parallelogram. The dividing lines between these adjoining tracts, which were held by different owners, were sometimes well marked, but in other cases not so distinctly indicated. The ground in which these small pieces of land were thus held by their various individual owners was known as the 'town or village lots, outlots, common field lots, and commons,' belonging to the particular village. A large number of the villages in the northern part of Louisiana, which afterwards came to be called the 'Territory of Missouri,' had these outlying appendages to the village proper, which were always treated as a part of it. The act of 1812 very carefully gives the names of the villages so situated, reciting the names of 'Portage des Sioux, St. Charles, St. Louis, St. Ferdinand, Villago a Robert, Carondelet, St. Genevieve, New Madrid, New Bourbon, Little Prairie, and Arkansas, in the territory of Missouri,' as those to which the act applied. It also declares that 'the rights, titles, and claims' intended to be covered by that statute are those to the 'town or village lots, outlots, common field lots, and commons in, adjoining, and belonging to the several towns or villages' thus designated. It will thus be seen with what care the statute enumerated the villages to which it was intended to apply, and the kind of claims to tracts of land therein proposed to be covered by it. The act then proceeds to confine its operation to those lots which 'have been inhabited, cultivated, or possessed prior to the 20th day of December, 1803,' that being the date on which, as already stated, the government and possession of the territory in which these settlements are located were actually transferred from France to the United States. It may also be noted that the language of the statute does not refer to lots then inhabited, cultivated, or possessed,-that is, on December 20, 1803,-but to such as had been so inhabited, cultivated, or possessed prior to that date, There is nothing in the act which implies that the title conferred by it was dependent on actual possession at the very date when the above transfer was made; but, on the contrary, if there had been habitancy, cultivation, or possession prior to that time the act operated upon the property. It will also be observed that these qualifications of what is to be confirmed require no description of the person of the owner, nor any evidence that any particular individual shall be proved to have inhabited, cultivated, or possessed any lot prior to December 20, 1803, nor any derivation of title from such a party, but simply that the land shall have been inhabited, cultivated, or possessed prior thereto. The act then proceeds to declare that 'the same,' evidently referring back to the 'rights, titles, and claims,' mentioned at the beginning of the section, to such lots as these, which 'have been inhabited, cultivated, or possessed prior to the 20th day of December, 1803, shall be, and the same are hereby, confirmed to the inhabitants of the respective towns or villages aforesaid, according to their several right or rights in common thereto.' The same section also made it the duty of the principal deputy-surveyor to run and mark 'the out-boundary lines of the said several towns or villages so as to include the outlots, common field lots, and commons thereto respectively belonging.' Testimony was offered in the trial court, which is found in the transcript of the record in this case, tending to show that the land now in controversy had been confirmed to four different individuals, Laroche, Bouis, Baccanne, and Bizet, respectively, by the board of commissioners established by the act of 1812, and that surveys of those confirmations, which, for reasons not necessary to explain, had been delayed a great many years, had finally been made by one Cozens. The court was asked to hold that those surveys constituted 'prima facie evidence of the correct location of such confirmations.' The lower court declined to do this, but the supreme court of the state, in reversing its judgment, declared that they were such prima facie evidence.
Although the duty of making a survey of the village of St. Louis, which should include all these outlying commons, outlots, and common field lots, was neglected by the officers of the government charged with its performance by the first section of the act of 1812, which we have been considering, such surveys have been made, and plats are presented in this record showing the locality of the village of St. Louis in 1803, together with the extent and location of each of the above classes of commons and outlots. Among these is a large piece of land, designated as the 'Grand Prairie Common Field of Saint Louis,' within which all the land in dispute is embraced. There is also evidence enough to show that all the land within this tract had been occupied and cultivated, within the meaning of the act of 1812, prior to December 20, 1803; and this fact is conceded in the argument of counsel for plaintiff in error, even if it were not clearly established. It may be taken as an unquestioned fact, as it is in the argument and in the supreme court of Missouri, that all the lands in the Grand Prairie Common Field had been occupied, cultivated, and possessed by the inhabitants of the village of St. Louis prior to December 20, 1803. Under these circumstances the trial court was asked to declare the law to be as follows: 'If the court, sitting as a jury, believes from the evidence that all of the land, from the lot of Motard on the south to the St. Charles road on the north, was inhabited, cultivated, or possessed as common field lots of the Grand Prairie Common Fields of St. Louis, by several different inhabitants of the town of St. Louis, prior to the 20th day of December, 1803, each of said inhabitants cultivating or possessing one or more such lots for himself, that such lots were in regular succession adjoining each other on the sides, and all having uniform and straight front, east and west lines, then the plaintiff cannot recover, if the court, sitting as a jury, further believes from the evidence that the land sued for lies within or constitutes a part of the land cultivated or possessed as aforesaid.' This it declined to do, but the supreme court of the state held that this prayer of the defendants in error stated the law correctly, and reversed the judgment of the court below, and directed a final judgment to be entered for them. This was done on the ground that the fact that all of the lands in the Grand Prairie Common Field of St. Louis had been inhabited, cultivated, and possessed prior to the act of 1803 showed that there could be no other title than that derived from the persons so inhabiting, cultivating, or possessing the land, and that the true construction of the act of 1812 is that it was a present grant, at the moment of its passage, of all the title of the United States to such land as had been so inhabited, cultivated, or possessed prior to 1803. It was held that the title thus passed out of the United States, and inured to the benefit of those who might thereafter, by contests among themselves, prove their right to profit by such cultivation or possession; that however it might be among them, and parties claiming under them, the United States had no further interest in the land, for it had parted with its entire title to all the lots described in the act. So, when it was asserted that in 1820, eight years thereafter, the act granting the sixteenth section for school purposes conveyed such land, the claim could not be admitted, because there was then no title remaining in the United States which it could grant to the state of Missouri.
That the act of 1812 was a grant in prasenti, and operated to convey or confirm such titles and claims as came within its description, has been repeatedly decided in the supreme court of the state of Missouri, and by this court. The case of Glasgow v. Hortiz, 1 Black, 595, contains a very full examination of this point and of the previous decisions of the court upon the same subject, and, citing the case of Guitard v. Stoddard, 16 How. 508, adopts the following language of the court: 'That the act of 1812 is a present operative grant of all the interest of the United States in the property described in the act, and that the right of the grantee was not dependent on the factum of a survey under the Spanish government; that the act makes no requisition for a concession, survey, or permission to settle, cultivate, or possess, or for any location by public authority, as the basis of the right, title, or claim upon which its confirmatory provisions operate. No. board was appointed to receive evidence, or authenticate titles, or adjust contradictory pretensions. All these questions were left to be decided by the judicial tribunals.' The court also said: 'The claims of these old villages to their common field lots, and the peculiar customs regarding them, were well known. Congress, therefore, did not require that any documentary evidence should be filed, nor a report of commissioners thereon. A survey was considered unnecessary, because the several boundaries of each claimant of a lot, and the extent of his possession, was already marked by boundaries, well known among themselves. They required no record in the land-office to give validity to the title. The act is certainly not drawn with much regard to technical accuracy. It is without that certainty, as to parties and description of the property granted, which is required in formal conveyances. But a title by statute cannot be thus criticised. It sufficiently describes the land intended to be granted, and the class of persons to whom it is granted. Besides, it is not a donation, or mere gift, requiring a survey to sever it from other lands of the donor; but, rather, a deed of confirmation to those who are admitted to have just claims. It passes a present title, proprio vigore, of the property described to the persons designated. A patent to another afterwards for any of these lands would be void, because the government had already released all title and claim thereto. If congress could not grant them to another, much less could the arbitrary edict, or imperfect performance of a neglected duty by a ministerial officer, operate to divest a clear title by statute.'
The land in question had been in the possession of the original defendant, Peter Lindell, for the time which would be required to bar this action by the statute of limitations before it was brought, and, extending as it does over a period of 30 or 40 years, is only prevented from thus operating by the principle which does not permit time to run against the government. But it cannot lose its force or value in the consideration of the question, whether the act of 1820 is to be construed as granting lands to the state of Missouri for the use of public schools, which had already passed to others under the act of 1812 by virtue of prior occupation, cultivation, or possession. When the defendants have proved that the land in controversy either belonged to the 'Grand Prairie Common Field of Saint Louis,' or that the lots in dispute had been inhabited, cultivated, or possessed prior to 1803, it would be a very harsh rule to require one who claims to have purchased the title arising from such occupation, cultivation, or possession to prove with certainty and precision the time when and the person who cultivated or occupied that precise property 80 or 90 years ago. Those who could testify from actual knowledge are, perhaps, all dead. The population of that time has passed away, and the memories of any who may be living would be very imperfect. Neither the spirit of the statute, nor justice, can require anything more than satisfactory proof that, according to the terms of the statute, such lots, and all the land within the Grand Prairie Common Field, had been inhabited, cultivated, or possessed prior to the year 1803. Such was the decision of the supreme court of the state of Missouri in this case reported in 50 Mo. 60, again in 72 Mo. 441, and finally in 85 Mo. 559, which is now under review. Such is also the spirit of all the decisions which this court has made upon the subject, the substance of which is found in Glasgow v. Hortiz, supra, which had relation to one of the same class of lots in dispute here. If we had any doubt as to the views above expressed, the reasons for which seem to be very plain, the three decisions above referred to of the supreme court of Missouri would be entitled to very great consideration. They were made at times so far apart that upon each occasion when a decision was rendered the court probably consisted of an entirely different body of judges, and they were arrived at by a court especially familiar with this class of questions, lying, as they do, at the foundation of much of the most valuable property in that state. Other questions have been argued by counsel in this case, and we have been urged in the brief to decide them; but as this proposition is a broad one, which covers the whole case, and is sufficient to dispose of it, we pursue our uniform course of declining to consider other matters not necessary to a determination of the issue. If the plaintiff in this action had no title under the act of 1820, because the United States had none to give, he had no right of action, and the case was properly decided against him. The judgment of the supreme court of Missouri is therefore affirmed.

## Notes

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