NaptoN, Judge,
delivered the opinion of the court.
The question upon which this case turned in the Land Court we consider as virtually settled -by the previous decisions of this court, and fully supported by distinct enuncia-tions of the same principle, and a similar application of it by the Supreme Court of the United States.
[534]*534In the case of Carondelet v. McPherson, this court declared “ that a survey regularly made and approved is conclusive upon the government that the land within the boundaries is the land granted, and the acceptance of the survey by the grantee is conclusive that all the land granted is within the boundaries.” (20 Mo. 204.)
In the case now under consideration this court said: “ If the surrey of 1834 was approved it would be prima facie evidence of the true location and boundaries of the Carondelet common, and the plaintiff could not recover without showing that it was incorrect and had never been recognized or accepted. No formal act is necessary to constitute an acceptance, but it may be inferred from a variety of acts and circumstances ; and though the acts of the party going to show that the survey had been accepted must be proven as facts to the jury, it will be the province of the court to declare, as a matter of law, the legal effect of particular acts bearing on the question. (Carondelet v. St. Louis, 25 Mo. 464.)
In Menard v. Massey, 8 Howard, 314, it is declared that “ when the survey is made and the field notes returned to the surveyor general’s office, and the description and plat made out in form and approved by the surveyor general, it is conclusive evidence, as against the United States, that the land granted by the confirmation is the same described and bounded by the survey, unless an appeal is taken by either party or an opposing claimant to the commissioner of the General Land Office. This consideration depends on the fact that the claimant and the United States were parties to the selection of the land, for, as they agreed to the survey, they are mutally bound and respectively estopped by it.”
In Guitard v. Stoddard, 16 Howard, 512, Mr. Justice Campbell, in speaking of the importance of a survey, and in reference to a confirmation of a common field lot under the act of 1812, reiterates with approbation this language of Mr. Justice Catron in Menard v. Massey.
The position of this court in the case of the City of Carondelet v. The City of St. Louis, 25 Mo. 449, in relation to the [535]*535mode of establishing on the trial the fact of acceptance of a survey is not understood to conflict with the views expressed in the case of Carondelet v. McPherson. In the last named case, the facts upon which the question of acceptance depended had not been passed upon by the jury, either with or without instructions from the court which tried the case; and this court could not, as a matter of law, assume the existence of any number of facts, or any one fact, which, when established by a verdict, might in their estimation constitute an acceptance. Whether there was an acceptance or not was regarded as a fact to be established to the satisfaction of the jury; and so it was considered in the case of The City of Carondelet v. The City of St. Louis; but it was further added in this last case — what we suppose to be entirely consistent with the views expressed in the former one — that an explanation of the facts which legally constitute a binding acceptance is properly within the province of the court; and such was the view of a question analagous to this in the case of Minor v. Edwards & Price, 12 Mo. 137.
However this may be, we are clearly of opinion that it is for the court to say what acts will in law constitute an estop-pel ; and, aside from any mere verbal criticism upon the instructions of the Land Court and the order in which they are now found upon the record, they submit to the jury, substantially and seriatim, all the facts enumerated by the court in Carondelet v. McPherson, and almost in the language of that opinion, and declare that these facts, if they existed, constituted an acceptance of the survey.
Assuming, however, that these decisions are not binding upon us, or that they will admit of a different interpretation, and considering the question as an open one, our opinion in relation to the merits of this case is not changed. We are unable to perceive any thing startling or novel, much less the slightest appearance of injustice or harshness, in the application of this familiar doctrine of the common law concerning estoppel to the public surveys. On the contrary, its mere enunciation must commend itself to the sense of justice [536]*536and propriety entertained by all persons independent of legal enactments or judicial decisions.
A claimant of a specific tract of land, for the title to which, he depends entirely upon the government, applies to that government for a confirmation. His application is heard and granted, and, at his instance, the government, through its authorized agent, points out by a survey the exact tract which has been thus confirmed or granted. The claimant accepts the land thus designated, takes possession and disposes of it. Shall he be allowed after this to turn round and say his land, thus granted and surveyed, accepted and disposed of, was not at the place where the government had located it, but at another and different place ? Is there any principle of justice or natural reason which would tolerate such a course'? On the contrary, is it not in conformity to common sense, as well as common right, that the party — who has thus declared, by the most deliberate and solemn action of which the subject matter admitted, that his confirmation was at the. place where the government had located it — should not be allowed afterwards to deny it, however false may have been the original assertion ? The common law doctrine of estop-pel is not a technical one, nor is it an inflexible iron rule confining itself to a given state of facts, but a principle of justice and public policy, adapting itself to varying circumstances. It is merely an admission, made in a form so deliberate and so solemn, either by record, by deed, or by act, as that public policy will not permit it to be contradicted. We see no impropriety in applying it to the peculiar condition of things, which has sprung up here in reference to Spanish grants and United States confirmations and surveys. That it is just and equitable no one will deny; that it is in conformity to the spirit of the laws of the United States upon this subject, interpreted as they have been by the highest tribunal authorized to pass upon these laws, is manifested by what has already fallen from that court, and it is only upon the most technical grounds that the doctrine is objected to.
That the estoppel must be mutual in order to be binding [537]*537is plain. If tlie government is not bound, neither is the claimant. But the view entertained of Brown’s survey of 1834, in the case of Sigerson v. Dent, is that the government was bound by it; and if the government was bound by it, Carondelet was equally bound by it if she accepted the land so surveyed as her common.
If the exclusion of the 1702 acres of land from Brown’s survey for a military reservation had been made without the consent of Carondelet, and was a valid exclusion within the power of the government at the time it was done, we should of course concur in the views urged by the counsel for Ca-rondelet in this case.
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NaptoN, Judge,
delivered the opinion of the court.
The question upon which this case turned in the Land Court we consider as virtually settled -by the previous decisions of this court, and fully supported by distinct enuncia-tions of the same principle, and a similar application of it by the Supreme Court of the United States.
[534]*534In the case of Carondelet v. McPherson, this court declared “ that a survey regularly made and approved is conclusive upon the government that the land within the boundaries is the land granted, and the acceptance of the survey by the grantee is conclusive that all the land granted is within the boundaries.” (20 Mo. 204.)
In the case now under consideration this court said: “ If the surrey of 1834 was approved it would be prima facie evidence of the true location and boundaries of the Carondelet common, and the plaintiff could not recover without showing that it was incorrect and had never been recognized or accepted. No formal act is necessary to constitute an acceptance, but it may be inferred from a variety of acts and circumstances ; and though the acts of the party going to show that the survey had been accepted must be proven as facts to the jury, it will be the province of the court to declare, as a matter of law, the legal effect of particular acts bearing on the question. (Carondelet v. St. Louis, 25 Mo. 464.)
In Menard v. Massey, 8 Howard, 314, it is declared that “ when the survey is made and the field notes returned to the surveyor general’s office, and the description and plat made out in form and approved by the surveyor general, it is conclusive evidence, as against the United States, that the land granted by the confirmation is the same described and bounded by the survey, unless an appeal is taken by either party or an opposing claimant to the commissioner of the General Land Office. This consideration depends on the fact that the claimant and the United States were parties to the selection of the land, for, as they agreed to the survey, they are mutally bound and respectively estopped by it.”
In Guitard v. Stoddard, 16 Howard, 512, Mr. Justice Campbell, in speaking of the importance of a survey, and in reference to a confirmation of a common field lot under the act of 1812, reiterates with approbation this language of Mr. Justice Catron in Menard v. Massey.
The position of this court in the case of the City of Carondelet v. The City of St. Louis, 25 Mo. 449, in relation to the [535]*535mode of establishing on the trial the fact of acceptance of a survey is not understood to conflict with the views expressed in the case of Carondelet v. McPherson. In the last named case, the facts upon which the question of acceptance depended had not been passed upon by the jury, either with or without instructions from the court which tried the case; and this court could not, as a matter of law, assume the existence of any number of facts, or any one fact, which, when established by a verdict, might in their estimation constitute an acceptance. Whether there was an acceptance or not was regarded as a fact to be established to the satisfaction of the jury; and so it was considered in the case of The City of Carondelet v. The City of St. Louis; but it was further added in this last case — what we suppose to be entirely consistent with the views expressed in the former one — that an explanation of the facts which legally constitute a binding acceptance is properly within the province of the court; and such was the view of a question analagous to this in the case of Minor v. Edwards & Price, 12 Mo. 137.
However this may be, we are clearly of opinion that it is for the court to say what acts will in law constitute an estop-pel ; and, aside from any mere verbal criticism upon the instructions of the Land Court and the order in which they are now found upon the record, they submit to the jury, substantially and seriatim, all the facts enumerated by the court in Carondelet v. McPherson, and almost in the language of that opinion, and declare that these facts, if they existed, constituted an acceptance of the survey.
Assuming, however, that these decisions are not binding upon us, or that they will admit of a different interpretation, and considering the question as an open one, our opinion in relation to the merits of this case is not changed. We are unable to perceive any thing startling or novel, much less the slightest appearance of injustice or harshness, in the application of this familiar doctrine of the common law concerning estoppel to the public surveys. On the contrary, its mere enunciation must commend itself to the sense of justice [536]*536and propriety entertained by all persons independent of legal enactments or judicial decisions.
A claimant of a specific tract of land, for the title to which, he depends entirely upon the government, applies to that government for a confirmation. His application is heard and granted, and, at his instance, the government, through its authorized agent, points out by a survey the exact tract which has been thus confirmed or granted. The claimant accepts the land thus designated, takes possession and disposes of it. Shall he be allowed after this to turn round and say his land, thus granted and surveyed, accepted and disposed of, was not at the place where the government had located it, but at another and different place ? Is there any principle of justice or natural reason which would tolerate such a course'? On the contrary, is it not in conformity to common sense, as well as common right, that the party — who has thus declared, by the most deliberate and solemn action of which the subject matter admitted, that his confirmation was at the. place where the government had located it — should not be allowed afterwards to deny it, however false may have been the original assertion ? The common law doctrine of estop-pel is not a technical one, nor is it an inflexible iron rule confining itself to a given state of facts, but a principle of justice and public policy, adapting itself to varying circumstances. It is merely an admission, made in a form so deliberate and so solemn, either by record, by deed, or by act, as that public policy will not permit it to be contradicted. We see no impropriety in applying it to the peculiar condition of things, which has sprung up here in reference to Spanish grants and United States confirmations and surveys. That it is just and equitable no one will deny; that it is in conformity to the spirit of the laws of the United States upon this subject, interpreted as they have been by the highest tribunal authorized to pass upon these laws, is manifested by what has already fallen from that court, and it is only upon the most technical grounds that the doctrine is objected to.
That the estoppel must be mutual in order to be binding [537]*537is plain. If tlie government is not bound, neither is the claimant. But the view entertained of Brown’s survey of 1834, in the case of Sigerson v. Dent, is that the government was bound by it; and if the government was bound by it, Carondelet was equally bound by it if she accepted the land so surveyed as her common.
If the exclusion of the 1702 acres of land from Brown’s survey for a military reservation had been made without the consent of Carondelet, and was a valid exclusion within the power of the government at the time it was done, we should of course concur in the views urged by the counsel for Ca-rondelet in this case. In that event, the government of the United States not being bound by the survey, neither were the inhabitants of Carondelet, however much they may have insisted upon its validity, and whatever action they may have taken in reference to it. But we have in the record two ordinances of the city of Carondelet, and a deed of conveyance, giving undoubted proof of the consent of Carondelet to this reservation.
The existence of valid claims within the limits of the survey of Brown would of course form no objection to the estop-pel either on one side or the other.. The survey was not binding on third persons. Neither the government nor Ca-rondelet could affect the title of adverse claimants by any agreement of theirs to a survey.
It has been urged in this case that, as the corporate authorities of Carondelet had not any power in 1834, or previous to 1851, to sell this land in fee simple, they could not, therefore, at the date of this survey, by any consent or acts of formal acceptance, part with their title to any portion of their common, outside of Brown’s survey, confirmed by the act of 1812, upon user alone.
The titles, which have sprung up here, based upon inchoate claims originating under another government, and especially those concerning the commons attached by law and usages to certain ancient villages, have occasioned much legislation on the part of the federal government and on the part of the [538]*538state, and many decisions upon those laws by the courts of both, which, in truth, constitute mainly the law by which these titles are to be construed and governed. The common law and the law of Spain, and the civil law which was its basis, may guide or illustrate, but can not control. After all, we must follow that interpretation of the statutes relating to this subject which a long series of authoritative judicial decisions may require. The whole system is sui generis; and the security and stability of titles require that it should be so maintained; and general principles, abstractly correct, ought not and can not safely be taken, either from the Spanish or common law, to affect the stability of titles deriving their efficacy from the laws of the United States and of this state and judicial interpretation of those laws, and which have been passed from hand to hand upon the faith of these decisions and laws.
We do not mean by these remarks to admit that the conclusion arrived at in this case is inconsistent with any principle of either the common law, or the law of Spain under which this property in commons originated. All we mean to say is, that the titles growing out of this peculiar property, now based upon laws of the United States and of this state, and upon judicial interpretations of those laws, must be governed mainly by reference to these laws and decisions.
The question on the trial of this case was not, whether in 1834, the date of Brown’s survey, Carondelet had any power to dispose of her commons in fee simple, but whether, either then, or at any time anterior to the trial, her acts in relation to this property amounted to an acceptance of the survey and an appropriation of the land within its limits as her common. Conceding that the corporate authorities of Caronde-let possessed no power of making a fee simple title to these lands in 1834, and that her leases in 1838, for ninety-nine years, renewable at the pleasure of the lessee, are distinguishable from an absolute disposition of the common — although the difference for all practical purposes may be quite inappreciable — yet in 1851 her charter gave her an absolute con[539]*539trol over this property and a power to convert these leases into fee simple titles. In 1834 the power to lease was given, and in 1839 the leases previously made were sanctioned by an express enactment of the legislature of Missouri. (Sess. Acts, p. 148.) Whether Carondelet possessed the power, therefore, in 1834 to part with any of her title to her common or not, she certainly had. that power long before this suit was brought, and had, by her application to the legislature in 1838, and her application to Congress in 1848, expressly sanctioned her previous disposition of these lands in 1838. So that at the time of the trial, when her power could not be questioned, she occupied the same position in relation to her assent and ratification of Brown’s survey as she had done previously when her power to give such an assent might have been questioned.
The history of this controversy, as exhibited on this record, shows that the authorities of Carondelet always acquiesced in the survey of their commons so long as the government of the United States showed a disposition to respect it. Previous to the survey, it is true, some of the authorities of Carondelet, and probably some of the inhabitants who had no authority, remonstrated most earnestly, and perhaps justly, against Brown’s survey of the St. Louis common, which, as they alleged, encroached upon their common on the north. But when Brown’s survey of their common was made, embracing as it did several thousand acres more than their original claim in quantity called for, no further complaint was made, at least to the government, and it was not until the officers of the government commenced efforts to overturn this survey that Carondelet sent up her remonstrances to Washington. The controversy was then kept up; but as the government finally acquiesced in the survey, and the original approval of the surveyor general was allowed to stand, the.same rule should apply to Carondelet, and both parties be held equally bound.
It is hardly necessary to add — what has already been distinctly declared by this court in the case of Carondelet v. [540]*540McPherson—that a survey of a confirmation is a survey of the whole confirmation, and that it must be received by the claimants as -it is offered by the government as an entirety. The survey purports to embrace all the land within the claim ; and if accepted at all, it must be. taken in the sense in which it is granted. Carondelet can not accept a survey of 9,000 acres as a satisfaction of her claim under the act of 1812 for common, and at the same time be allowed to assert that there remains land outside of the survey within the confirmation. Such is not the purport or intendment of the law; and, as the government never makes, and is indeed not authorized to make, any such partial surveys, so the party that takes them must receive them in the sense in which they are given. Upon any other construction a survey could not be held binding on the government. Judgment affirmed.