# Dent v. Sigerson

> Supreme Court of Missouri · March 15, 1860 · 29 Mo. 489

URL: https://www.frixlaw.com/law-library/cases/8000770

## Case

- **Full name:** Dent, in Error v. Sigerson, in Error
- **Court:** Supreme Court of Missouri
- **Decided:** March 15, 1860
- **Citations:** 29 Mo. 489
- **Precedential status:** Published
- **Opinion:** Dissent by Scott
- **Judges:** Napton, Richardson, Scott
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8000770

## Opinion text

Scott, Judge,
dissenting. Although the plaintiff Dent stands on the record in the attitude of one seeking to eject the defendants from their possession, yet, from this record and others agreed to be made part of it, it appears that he was the prior occupant of the land in controversy, it being a *515 part of a larger tract confirmed to him by the act of Congress of the 4th July, 1836. His controversy is in reality with the city of Carondelet, as the defendants claim through her. The possession of the plaintiff was long prior to any lease of the land in suit by the city of Carondelet, by whom it was claimed as a part of her commons confirmed by the act of Congress of June 13, 1812. The defendants obtained possession with a full' knowledge of the"rights of the plaintiff. These facts are stated, not with a view to affect the law of the case, with which they have nothing to do, but to meet any complaint of hardship which' may be made against disturbing long continued possession. The record shows that if such complaints are to be indulged in, they would come more properly from the plaintiff than the defendants.
This is the third or fourth time that the claim of the plaintiff has been before this court, and there never has been an adjudication hostile to it. He claims under a confirmation by the act of July 4, 1836, and an approved survey thereon. Carondelet and those claiming under her maintain that the land was confirmed to her as a part of her commons by the act of June 13,1812. The ground on which the right of the plaintiff has been maintained is, that having a confirmation by the act of Congress with an approved survey, his title is a better one than that of Carondelet resting on a confirmation alone, though a prior one, without an approved survey ; indeed on one which has been disapproved. This court has held that under the act of June 13,1812, there may be a recovery on a title by confirmation without a survey, as that act conferred a legal title. (Funkhouser v. Langkoff, 26 Mo. 453 .) This opinion is fully sustained by the case of West v. Cochran, 17 How. 476 . Indeed that case is the foundation of the opinion. But, notwithstanding this, there is a class of cases in which the Supreme Court of the United States has held that when a confirmation is .vague and indefinite as to its boundaries, a person obtaining a complete title from the general government after the confirmation but before there is an approved survey will hold it against the *516 confirmee. Such are the cases of Menard’s heirs v. Massey, 8 How. 293 , and Cousin v. Blanc’s Exec’r, 19 How. 202 .
But this case, as presented to us, does not raise the question whether Carondelet, on her confirmation alone without an approved survey, could have made a defence against the title of the plaintiff, as the only instruction given was that, “ if the land in controversy is within the survey of the common of Carondelet made by Rector in 1817 and that made by Brown in 1834, the plaintiff is not entitled to recover in this action.” Nor did any of the instructions asked by the defendants put the question to the jury whether the claim of the plaintiff was a part of the commons of Carondelet. The case was made to turn on the survey, and not on the fact whether the claim of the plaintiff was a part of the commons. If the third instruction asked by them was intended for this purpose, it was clearly erroneous; as may be, seen by comparing it with the instruction given in the case of Mackay v. Dillon, 4 How. 448 , for which instruction the judgment was reversed. It took from the jury the question whether the lands were commons or not, and assumed that land might be confirmed by the act of June 13, 1812, whether or not it was commons. That act confirmed to the inhabitants of the villages therein named only commons; and whether land was used as commons prior to the 20th of December, 1803, was a question for the jury. The evidence in the case shows that there was a prior valid title within the boundary claimed for the commons. It also shows that there were concessions within the boundary prior to the date of the paper asserted by Carondelet'to be the grant of the commons.
But it is understood that the majority of the court, without controverting the validity of the claim of the plaintiff as it has heretofore stood, maintains that the survey or surveys of Rector and Brown were approved by the opinion of the Secretary of the Interior of February 26, 1855, without inquiring into the regularity of this evidence of title made after the action was begun. An examination will be made to ascertain whether the letter of the secretary can possibly be *517 construed into such an approval as will affect the rights of tbe plaintiff in this action. The opinion of the secretary was enclosed in a letter written by the commissioner of the‘General Land Office and addressed to the .surveyor general of Missouri. This letter has been published, and its exposition of the opinion never contradicted. If this letter of the commissioner is to have any weight, prepared under the circumstances it was, with the full knowledge of the secretary if not by his directions as we may suppose, it is not conceivable how a doubt can arise as to the meaning of the secretary’s opinion. It leaves no room for even a cavil. The concluding words of that letter are : “ You ’will also declare, in your approval of the Carondelet commons survey, that, as regards the rights of all other claimants within the limits of that survey who hold adversely to Carondelet, your approval is in no manner intended, nor shall it be construed, to interfere with the rights of adverse claimants to seek a judicial settlement of their several interests.” But does the opinion of the secretary stand in need of any explanation ? He says: “ My decision therefore is that the survey of 1816 or 1817, as retraced by Joseph C. Brown in 1834, should be sustained, excluding, of course, the 1702 acres heretofore set apart and reserved for the use of the military post at Jefferson Barracks ; and that the parties claiming adversely to Carondelet should not be hindered thereby from establishing and settling their rights before the judicial tribunals of the country.” Can language be plainer than this ? But if any doubt can arise as to the meaning of this sentence, to be satisfied that it was deliberate and intended its obvious purport, we have only to look to the extract from the opinion of the Supreme Court of the United States cited by' the secretary from Mackay v. Dillon, 4 How. 446 . It is in these words : “ The act of Congress of 1812 confirming the claims to commons adjoining and belonging to the town of St. Lohis did not define the extent and boundaries of these claims, nor adopt the evidence laid before the commissioners for that purpose. The boundaries of the claim thus confirmed were designedly *518 left open to the settlement - of the respective claimants by •litigation in the courts of justice or otherwise.” The letter of thé commissioner, by its terms, shows that he is the organ of the secretary, through which he gives directions for carrying out his opinion. That officer directs the surveyor general of Missouri to make the approval of the survey and the terms in which it shall be done, being those above stated. The approval was accordingly made by the surveyor general, with a reservation of the right to private claimants to resort to the courts of justice to adjust their respective claims, as will be seen by reference to his approval endorsed on the plat of the survey of the commons preserved in the bill of exceptions. So that the only approval of the survey that has been made is one in which it has been expressly declared that it is in no manner intended, nor shall it be construed, to interfere with the right of such private claimants as hold adversely to Carondelet “ to seek a judicial settlement of their several interests.”
Indeed it seems too' plain to admit of any doubt that the secretary’s approval of the survey was not intended to affect in anywise the right of the plaintiff to his confirmation within the limits of that survey. The only question that can ai’ise on the opinion of the secretary is, whether it is competent to him to give a qualified approval; whether his approval, restricted as it was in its operation, could be sustained; and whether, although restricted in its terms, it would not operate as though it was absolute. But no ground is perceived on which a question can arise as to the exercise of this power by the Secretary of the Interior. The extract from the opinion of the Supreme Court in the case of Mackay v. Dillon, above cited, furnished ample authority for the course pursued by that officer. The control retained by the government over the public surveys is for the preservation of its rights. If the government is satisfied so far as its rights are concerned, why should it go farther, and endeavor to conclude by the acts of its officers individuals from the assertion of their claims. So far as the government was concerned, it *519 was satisfied with the survey of the commons, reserving the •Barracks and the adjoining land — declaring at the same time that, if there were any rights belonging to individuals hostile to those of Carondelet, it did not intend thereby to interfere with them.
In the case of Menard v. Massey, 8 Howard, 314 , the Supreme Court of the United States, speaking of the conclusiveness of a survey not appealed from as to the United States, says: “ But private claimants of lands within its boundaries, who were no parties to the survey, are not estop-ped, and may controvert its conclusiveness so far as their claims interfere with the lands thus selected by the party and which were laid off to him by the United States.” According to the decision of the Supíneme Court of the United States in the case of Le Bois v. Brammel, 4 How. 449 , an unqualified approval of a survey would have been equivalent to a patent; and being such, the rights-of those claiming under a confirmation by the act of the 4th of July, 1836, would have been concluded, as it has always been held that a confirmation under the act of 1812, with a valid survey, is a better title than a confirmation under the.act of 1836 with a like survey. As the approval of the survey is an act of the understanding, and as it is evident that -the act of the officer, in approving the survey of the commons so far as the United States were concerned, did not intend to affect the hostile rights of claimants of the commons, on what principle can it be maintained to have that effect, but that there could not be any other approval than an absolute one ? .But as the survey of the commons never has been approved so far as adverse claimants are concerned, how can an imperfect and incomplete approval be construed into a valid one ? All that can be said is that an approval affecting the plaintiff has never yet been made, and it is still to be done. The survey as to the plaintiff stands yet unsupported by an approval; but if the government, through her officers, can not make any other than an unqualified approval, on what ground was the approval made reserving 1702 acres on which the Barracks *520 stand ? This ground had not been reserved when the act of 1812 was passed. The Barracks were not commenced until a great many years afterwards, and in this respect the United States were in no better a situation than private claimants ; for, if the title by the act of 1812 passed to Carondelet, the government could not afterwards appropriate the land. (Sigerson v. Hornsby & Dent, 23 Mo. 268 .) Surely the case of Michell v. United States, 15 Pet. 52 , to which reference was made by the Secretary of the Interior, can not be applicable here, as the Barracks were begun after 1820, long after the Spanish laws had ceased to have any effect in Missouri. The government of the United States, in conveying lands by patent, limits their effect so as to make them operate as quit-claims as to it, leaving the rights of others to the lands patented to be settled and adjusted by the courts. An instance of such a patent, which was approved by the Supreme Coitrt of the United States, is to be found in the case ’ of Bryan et al. v. Forsyth, 19 How. 336 .
It was maintained in argument before the defendants that, although the survey was not approved by the secretary so as to operate adversely to the rights of the plaintiff, yet the surveys of Bector and Brown stand as approved surveys under the laws of the United States irrespective of the action of the Secretary of the Interior; and being so, they show a right in the defendants superior to that of the plaintiff. If this proposition is correct, the consequence drawn from it can not be controverted. There is some confusion in the argument as to the surveys of Rector and Brown. Sometimes they are regarded as one and the same ; sometimes as different surveys, or at least that the survey of Rector by itself without any aid from that of Brown is valid. The object to be attained by thus presenting the survey is to show, that, as the survey of Rector was made as early as 1816, it could not be set aside after so long a period as that intervening between the time of its being made and the time of setting it aside, a space of more than twenty-five years.
The survey of Rector as it stands unconnected with that *521 of Brown will be first considered. The act organizing the surveyor general’s office for Missouri was passed April 29, 1816. It is admitted that, in order to be valid, tlie survey must have been by virtue of this law. Now that survey was made in 1816, as appears by the testimony of Milburn, a witness for the defendants, but whether before or after the 29th of April of that year nobody knows. It was agreed that the record of the suit of Bingham v. Dent, a report of which is to be found in 8 Mo. 569 , might be read in this case. That ease, as is apparent from the report, was prepared by the counsel on the part of Carondelet, who was represented by Bingham, with great care, and there is a long array of papers and documents in- support of the claim of Carondelet; yet, as the cause is reported, there is no allusion to the survey of Bector. - Brown’s survey at the time of the trial had been set aside, and surely, if ever, then there was need of the survey of Bector. If the survey at that time had been regarded as valid, it is difficult to conceive why it was not then produced. It can not be maintained that it was unknown. The clerk, who. had seen the field notes of the survey the year after it was made, was then the surveyor general, or, if not, he was still in-the office. The fact that the existence of the paper was not'known, or that it was forgotten, is a strong argument against it. The survey would not close; it could not be platted. It could not then be lawfully received ; and we must presume a violation of duty in a public officer to come to the conclusion that it was approved. No doubt errors were discovered after a survey had been approved. But take the testimony of Milburn, who was in the office from 1818 till 1841, and was part of that time surveyor general, a witness for. the defendant, and that of A. H. Evans, a clerk in. the office from 1822 till. 1836, a witness for the plaintiff, and we must come to the conclusion that there was no regard paid to the survey of Bector until Brown was ordered, in February, 1834, to connect it with the adjoining lands. The testimony of Milburn, who seemed from the documents in the cause to have felt a *522 decided interest for Carondelct, is conflicting. He says, the field notes of Rector, though in the office, were never acted npon until the date of the surveyor general’s order to Brown in 1834; it lay in the office unnoticed until 1834, when it was jointly approved with Brown’s survey; that the paper in evidence as Rector’s survey is not a recorded survey and forms a part of his official reports on the subject of the Carondelet commons; that surveys were not paid for till examined; thinks this survey was paid for, and that he made out the account; that the lines of the survey would not close, there being a considerable discrepancy; if it was as great as stated he would not approve the survey. Spald-ing, a clerk in the office, testified that the discrepancy was as great as it had been represented to Milburn. Milburn further stated that a survey was never approved until it was examined, and that he thought Rector’s survey was never examined until Brown’s survey was made in 1834. A clerk in the office testified that Rector and Brown’s survey bore the same number. This being the evidence in support of the survey, can the evidence of Evans, the witness above named, fail to show in what light Rector’s survey is to be regarded ? He was engaged in the office in platting and examining work. He saw Rector’s notes and never regarded them as official, nor ever used them; it was a private matter of Rector; and was told by him, or the surveyor general, that the survey was made for Rector’s private use to enable him to locate New Madrid certificatesthat his situation in the office enabled him to know what papers were official; that he was familiar with the contracts, orders and instructions to surveyors, and never saw any contract concerning, or order to make, this survey; that his duty was to number and file field notes, but, as he thought, he never filed or numbered those of Rector.
The testimony of the other clerks as to the manner of doing business in the office in later times, and of the great looseness in the practice of the office during the time of which we are speaking, can not materially affect the other evidence *523 in-relation to the authenticity of Rector’s survey. It does seem that the declaration of Milburn that the notes of Rector’s survey were not noticed until 1834 ought to be conclusive on this subject.
It is conceived that enough has been said to show that Rector’s survey by itself can not be sustained as a legal and official act. It is a matter of no concern what weight is given to it in connection with Brown’s survey. It must be considered as only coeval with that of Brown, and stand upon the same footing as regards the supervisory powers of the officers of the general government over the public surveys.
Our order nest leads us to the consideration of Brown’s survey. That survey was made in 1834, and during the same year, was approved by the surveyor general. It was not certified to the General Land Office till 1839, and then in pursance to an order from the Land department. The main question discussed in relation- to this -survey was, whether, under the circumstances, the survey, having been made before the act of 1836 reorganizing the Land department, it was subject to the revisory powers of the officers of the general government. It seems to be admitted that when a survey is made and approved by the surveyor general, a party affected thereby may appeal to the Land department. But in what time this appeal must be taken, when the injured party has had notice of the survey; how long he must be allowed to appeal when he has had no notice; or whether he is in the usual exceptions of the statute of limitations; whether the officers of the government can at any, or within what, time interfere with a survey from which there has been no appeal; whether the failure of the surveyor general to send on a copy of the survey to the Land department affects this right, are questions of great importance, and merit the most serious consideration. As the regulations on this subject must be uniform throughout the states in which the public lands lie, this court can not prescribe them ; they must be ascertained and fixed by that tribunal to which belongs the interpretation of the laws of the United States in the last resort. The re *524 cord before us is a sad commentary on tbe law in relation to the supervision of surveys by the officers of the general government. To see, during a period of fifteen years, one doing and another undoing, one approving, another disapproving, not in subordination to each other by appeal, but each acting independently of the other, as standing in the relation of predecessor and successor, taking up the subject anew without regard to what had been previously done, and these officers being continually changed, affords a gloomy prospect for the stability of titles to real estate. The views expressed in the case of Carondelet v. Dent, 18 Mo. 290 , in relation to this subject are still entertained.
• But notwithstanding the supervisory power of the officers of the federal government is liable to abuse, our experience and observation teach us that the existence of such a power is necessary. It would lead to too great injustice and oppression if the acts of the surveyor general were final and conclusive. The existence of such a power serves as a check on that officer ; and a knowledge that his conduct can be reviewed and his errors corrected serves as a moral restraint, and frequently prevents the necessity for its exercise. It would be observed that Brown’s survey was made and approved in 1834. The act of May 26,1824, was therefore in force, which required that the vacant lots mentioned in the act of 1812, under the instructions of the commissioner of the General Land Office, should be surveyed, designated and set apart for the support of schools in the towns and villages. No reason is seen why the survey of the commons, mentioned in the same section and in connection with the vacant lots, should not be surveyed also under the like instructions. The phrase in that section “ under the instructions of the commissioner of the General Land Office” apply as well to the commons as to the vacant lots. If the commons were to be surveyed without directions from the commissioner and to be designated as the private lots, why were they not mentioned in connection with those lots in the first section of the act ? Be this as it may, it is impossible to deny that, from the evidence in the record, *525 tbe testimony of tbe officers in tbe surveyor, general’s office, the various instructions from tbe Land department as published in tbe Land Laws (2 vol.) of tbe date of 1838, prepared and printed by order of tbe Senate, that a supervisory power over surveys lias been exercised in some manner from tbe time of establishing a surveyor general’s office in the United States. This power would' seenr to result from tbe structure of our federal executive, who is charged with tbe duty of seeing that the laws are faithfully executed, and who, in tbe absence of legislative regulations, must see that his subordinates do not trample down all right and justice.
The act of April 29,1816, providing for the appointment of a surveyor of the public lands in the territories of Illinois and Missouri, made it the duty of that officer to cause to be surveyed the lands in the said territories which have been or may hereafter be confirmed by any act of Congress, which have not been already surveyed according to law, and to forward copies of the plats of the surveys to the commissioner of the General Land Office. The plat of Brown’s survey was not forwarded to the Land department until the year 1839, it being made in 1834. The plat was forwarded by an order from the department, and on the 20th January, 1841, the department notified the surveyor general of Missouri that the survey was disapproved. One of the causes of this disapproval was, as this record shows, that the United States Barracks are within the limits of Brown’s survey. The government claims, as appurtenant to those Barracks, upwards of 1700 acres of land, all within the survey. The Barracks were erected by appropriations of money made by Congress, and a beginning of them was made prior to' Brown’s survey. The laws of Congress in relation to this subject disclose this fact. Under these circumstances was there any authority in any officer of the government to approve a survey, the effect of which was to pass the title to lands which had been appropriated by Congress ? If the approval by the surveyor general of Brown’s survey concluded the plaintiff, it equally concluded the United States, for the title to the commons *526 dates from the act of June 13, 1812, long before there was any appropriation by Congress for the Barracks. Any secret arrangement at the time, or a subsequent one, between the officers of the government and Carondelet, by which the claims of the United States were secured, thus making the survey harmless to them but binding on the private claimants, was a disgrace to all those concerned in it; and it would be a great outrage to permit an approval obtained by such means to have the least weight or authority against the plaintiff. Whatever may be the law as to the power of the officers over surveys, under the peculiar circumstances of this case, I am not of the opinion that the survey of Brown stood as an approved one when it was first interfered with by the Land department.
If the approval of the survey by the Secretary of the Interior, in February, 1855, was designed only to affect and conclude the rights of the United States, leaving the rights of private claimants undisturbed by it and remaining as though the approval had not been made, then it is obvious that the claim of the plaintiff has not been tried on its merits, as the question whether it was a part of the commons has never been submitted to a jury, which is required in an action on a confirmation by the act of 1812, according to the doctrine of West v. Cochran, 17 How. 416 . In suits on such titles, the act confirming the title is regarded as a patent, and the party relying on it must produce the evidence which shows that the land sued for is that confirmed by the act of Congress. The history of these commons show that valid private claims might exist within the outboundary of their survey. (Inhabitants of Carondelet v. Dent, 18 Mo. 292 .) In my opinion, the judgment should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8000770. Public record. Not legal advice.