Scott, Judge,
delivered the opinion of the court.
The principal question involved in this controversy has, during its pendency, been determined by the Supreme Court of the United States, in the case of Guitard et al., v. Stoddard, (16 Howard, 494.) That case settled that a confirmation by the act of the 13th June,-1812, was absolute, depending only on the fact of inhabitation, cultivation or possession prior to [252]*252the 20fch December, 1808; and that' it was not necessary for the confirmee to have received from the Spanish government a grant or survey, or permission to occupy or cultivate the land claimed ; that the act of 26th May, 1824, requiring claimants to designate their lots by proving the facts therein specified, imposed no forfeiture for a failure to comply with its terms, nor were the claims, as confirmed by the said act of 1812, in any way impaired by such omission ; but claimants might still establish their titles by parol evidence of those facts, for which they were confirmed by the said act.
The main question in the cause having been determined by that tribunal, whose judgments in matters involving the construction of the laws of the United States are conclusive, we will proceed to examine some other points presented to our consideration, necessary to a final determination of this controversy.
The case above referred to disposes of the 1st, 2d, 3d, 4th and 15th instructions aslced by the plaintiff and refused, and the others will be reviewed in their numerical order.
There was no error in refusing the fifth instruction, because it contains no reference to the act of 27th January, 1831, along with the other acts mentioned, without the aid of which it is conceived that the city cannot maintain a suit for the common. (Les Bois v. Bramell, 4 Howard, 469.)
Instruction numbered six was properly refused, as it maintained that a confirmation and survey under the act of 1812, was a better title than a confirmation under the same act, with proof of inhabitation, cultivation or possession, which is contrary to the doctrine asserted in the case of Guitard v. Stoddard, above referred to.
The seventh instruction, in relation to survey No. 3182, which was a survey of the Motard claim, as confirmed by the act of July 4, 1836, was too general in its language, as the effect of it was to deprive that survey of all validity whatever, taken disconnected with the act of July 4th, 1836. Whereas, it is conceived that that survey is evidence of the locality of the [253]*253claim of Motard, under whatever law it is regarded. The claim under which the defendant held was recognized by the Spanish lieutenant governor, in witnessing its several transfers. That claim, it is alleged, was confirmed by the act of 1812. The same claim was afterwards presented to a board of commissioners , and was by them confirmed. It was then surveyed under the authority of the laws of the United States, by virtue of this last confirmation. Now it is conceded that a confirmation under the act of 1836, and a survey thereupon, is an inferior title to a confirmation and survey under the act of 1812. But what principle is violated by the use of the survey under the act of 1836, as mere evidence of the locality of a claim under the act of 1812 ? It is an authoritative act of a public officer. As such, it was referred to by the plaintiff in her petition to designate a boundary of the land sued for. Of itself, it conferred no title. It was not given in evidence with any declaration that it had any such effect, but simply quantum valeat valere po-test. If two claims are for the same tract of land, why should not the location of it under one of them be used indiscriminately for showing the land claimed ?
Complaint is made for the refusal of the eighth instruction, as it contained a correct legal proposition and was relevant. The case as made by the instructions given for the defendant did not turn on any title derived under the act of July 4, 1836, but rested for its validity on the act of 1812, and the proof of the facts thereby required. The refusal, therefore, of the court to grant it would not be apt to affect injuriously the rights of the plaintiff. But this is no answer to the objection. The first proposition contained in that instruction was undoubtedly the law as established by the decisions of the Supreme Court of the United States in the cases of Mackay v. Dillon, and Les Bois v. Bramell, (4 Howard, 421 and 449.) These cases fully maintain that a confirmation and survey of the commons, under the acts of 1812 and 1824, is a superior title to any derived by confirmation and survey under the act of July 4, 1836. The last clause of the instruction under exam[254]*254ination would make the survey alone, disconnected with the acts of 1812 and 1824, conclusive. When a party seeks to reverse a judgment for the refusal of an instruction, the refusal of which, it is claimed, might possibly have injured him, and when the judgment might well stand consistently with the hypothesis assumed in the instruction refused, and by the instructions given was made to stand on a different hypothesis altogether, that instruction must be omni excepiione majore.
The ninth, tenth, eleventh and twelfth instructions required the court to declare, as law, that the claimant, under the act of 1812, must be the same person who cultivated the lot prior to the 20th December, 1803 ; that the act of 1812 is only available to those who continued to retain their claims arising under the Spanish government, until the date of its passage. It is clear that, if a claim was abandoned, it had no existence at the date of the act, and could not, therefore, be confirmed. But it is conceived that a claim, whether it was transferred before or after the change of government, was not affected by any disposition made of it. If the inchoate right, commencing under the Spanish government, continued in existence until the act of 1812, it was confirmed without regard to the number of alienations to which it had been subjected, and enured to him who was entitled to it, whether he claimed by purchase or descent. The confirmation was to the original claimant or his legal representatives, without regard to the date of the alienation. This, it is believed, has been the uniform interpretation of the act. The construction contended for by the plaintiff would leave most of the claims in existence at the date of the act unconfirmed.
The thirteenth and fourteenth instructions relate to the statute of limitations, about which there is no controversy.
The subject of the sixteenth instruction will be considered in connection with the instructions given for the defendant.
The seventeenth instruction is in these words : “ The act of congress of the 13th June, 1812, confirmed only so much land as was inhabited, cultivated or possessed by the claimant prior [255]*255to tbe 20th December, 1803, where such claim was not definitely located and bounded.” The claims contemplated by the act of 1812 must have had existence under the Spanish government. The claim of Motard was recognized by the Spanish authorities. It was seven by forty arpens, lying in the Cul de Sac fields, against Little river. There seems as much definiteness here as in many claims confirmed by the act of 1812, and it has never been thought that the rights of claimants, in such cases, were limited to the spot actually inhabited or cultivated.
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Scott, Judge,
delivered the opinion of the court.
The principal question involved in this controversy has, during its pendency, been determined by the Supreme Court of the United States, in the case of Guitard et al., v. Stoddard, (16 Howard, 494.) That case settled that a confirmation by the act of the 13th June,-1812, was absolute, depending only on the fact of inhabitation, cultivation or possession prior to [252]*252the 20fch December, 1808; and that' it was not necessary for the confirmee to have received from the Spanish government a grant or survey, or permission to occupy or cultivate the land claimed ; that the act of 26th May, 1824, requiring claimants to designate their lots by proving the facts therein specified, imposed no forfeiture for a failure to comply with its terms, nor were the claims, as confirmed by the said act of 1812, in any way impaired by such omission ; but claimants might still establish their titles by parol evidence of those facts, for which they were confirmed by the said act.
The main question in the cause having been determined by that tribunal, whose judgments in matters involving the construction of the laws of the United States are conclusive, we will proceed to examine some other points presented to our consideration, necessary to a final determination of this controversy.
The case above referred to disposes of the 1st, 2d, 3d, 4th and 15th instructions aslced by the plaintiff and refused, and the others will be reviewed in their numerical order.
There was no error in refusing the fifth instruction, because it contains no reference to the act of 27th January, 1831, along with the other acts mentioned, without the aid of which it is conceived that the city cannot maintain a suit for the common. (Les Bois v. Bramell, 4 Howard, 469.)
Instruction numbered six was properly refused, as it maintained that a confirmation and survey under the act of 1812, was a better title than a confirmation under the same act, with proof of inhabitation, cultivation or possession, which is contrary to the doctrine asserted in the case of Guitard v. Stoddard, above referred to.
The seventh instruction, in relation to survey No. 3182, which was a survey of the Motard claim, as confirmed by the act of July 4, 1836, was too general in its language, as the effect of it was to deprive that survey of all validity whatever, taken disconnected with the act of July 4th, 1836. Whereas, it is conceived that that survey is evidence of the locality of the [253]*253claim of Motard, under whatever law it is regarded. The claim under which the defendant held was recognized by the Spanish lieutenant governor, in witnessing its several transfers. That claim, it is alleged, was confirmed by the act of 1812. The same claim was afterwards presented to a board of commissioners , and was by them confirmed. It was then surveyed under the authority of the laws of the United States, by virtue of this last confirmation. Now it is conceded that a confirmation under the act of 1836, and a survey thereupon, is an inferior title to a confirmation and survey under the act of 1812. But what principle is violated by the use of the survey under the act of 1836, as mere evidence of the locality of a claim under the act of 1812 ? It is an authoritative act of a public officer. As such, it was referred to by the plaintiff in her petition to designate a boundary of the land sued for. Of itself, it conferred no title. It was not given in evidence with any declaration that it had any such effect, but simply quantum valeat valere po-test. If two claims are for the same tract of land, why should not the location of it under one of them be used indiscriminately for showing the land claimed ?
Complaint is made for the refusal of the eighth instruction, as it contained a correct legal proposition and was relevant. The case as made by the instructions given for the defendant did not turn on any title derived under the act of July 4, 1836, but rested for its validity on the act of 1812, and the proof of the facts thereby required. The refusal, therefore, of the court to grant it would not be apt to affect injuriously the rights of the plaintiff. But this is no answer to the objection. The first proposition contained in that instruction was undoubtedly the law as established by the decisions of the Supreme Court of the United States in the cases of Mackay v. Dillon, and Les Bois v. Bramell, (4 Howard, 421 and 449.) These cases fully maintain that a confirmation and survey of the commons, under the acts of 1812 and 1824, is a superior title to any derived by confirmation and survey under the act of July 4, 1836. The last clause of the instruction under exam[254]*254ination would make the survey alone, disconnected with the acts of 1812 and 1824, conclusive. When a party seeks to reverse a judgment for the refusal of an instruction, the refusal of which, it is claimed, might possibly have injured him, and when the judgment might well stand consistently with the hypothesis assumed in the instruction refused, and by the instructions given was made to stand on a different hypothesis altogether, that instruction must be omni excepiione majore.
The ninth, tenth, eleventh and twelfth instructions required the court to declare, as law, that the claimant, under the act of 1812, must be the same person who cultivated the lot prior to the 20th December, 1803 ; that the act of 1812 is only available to those who continued to retain their claims arising under the Spanish government, until the date of its passage. It is clear that, if a claim was abandoned, it had no existence at the date of the act, and could not, therefore, be confirmed. But it is conceived that a claim, whether it was transferred before or after the change of government, was not affected by any disposition made of it. If the inchoate right, commencing under the Spanish government, continued in existence until the act of 1812, it was confirmed without regard to the number of alienations to which it had been subjected, and enured to him who was entitled to it, whether he claimed by purchase or descent. The confirmation was to the original claimant or his legal representatives, without regard to the date of the alienation. This, it is believed, has been the uniform interpretation of the act. The construction contended for by the plaintiff would leave most of the claims in existence at the date of the act unconfirmed.
The thirteenth and fourteenth instructions relate to the statute of limitations, about which there is no controversy.
The subject of the sixteenth instruction will be considered in connection with the instructions given for the defendant.
The seventeenth instruction is in these words : “ The act of congress of the 13th June, 1812, confirmed only so much land as was inhabited, cultivated or possessed by the claimant prior [255]*255to tbe 20th December, 1803, where such claim was not definitely located and bounded.” The claims contemplated by the act of 1812 must have had existence under the Spanish government. The claim of Motard was recognized by the Spanish authorities. It was seven by forty arpens, lying in the Cul de Sac fields, against Little river. There seems as much definiteness here as in many claims confirmed by the act of 1812, and it has never been thought that the rights of claimants, in such cases, were limited to the spot actually inhabited or cultivated. Such a view is contradicted by the prevailing opinion in relation to this subject. It is not the possession that is confirmed by the act, but the right and claim to a lot inhabited, cultivated or possessed prior to the 20th December, 1803. Possession is the evidence of the existence of a claim, but not of the entire extent of it — at least not the only evidence. The extent of a claim resting on no grant nor concession, but on matters in pais, would be a very proper subject for the consideration of a jury. No documentary evidence or authoritative location or ascertainment of boundaries was a pre-requisite to a confirmation under the act of 1812. ( Guitard v. Stoddard, 16 Howard.) There was evidence in the record of the extent of the claim of Motard.
The eighteenth instruction relates to the affidavits of witnesses, as contained in the copies of the proceedings of the board of commissioners, and of the recorder of land titles, read in evidence, and asks that the jury be directed that they are not evidence in this case of the facts therein stated. The plaintiff read a portion of these depositions, on her part, without objection. That must have been done with some view. They must have been regarded as evidence for some purpose. It is clear that they were not evidence for the purpose of establishing the fact of inhabitation, cultivation or possession, as required by the act of 1812, on the part of the defendant, and should not. have been listened to by the jury for any such purpose. But. the instruction is not thus limited in its operation. In its-scope, it would deprive the affidavits of all efficacy for any pur[256]*256pose whatever. If the affidavits are not evidence of the facts in them stated, then they would be no evidence at all; no use could be made of them as evidence. The directions as to the effect of evidence should be given at the time it is delivered. The course adopted by the plaintiff might lead to surprise. If evidence is permitted to be introduced without objection, and the party producing it lets it remain with the jury until the case is closed, and then, by instruction, seeks to avoid the effect of it, his adversary might be deprived of testimony which might otherwise have been supplied. We are not prepared to say that the affidavits are evidence for no purpose. They have been used to give locality to a claim without objection, and we see no reason why they might not have been so used in the case before us.
The instructions given at the instance of the defendant, defining an out-lot within the meaning of the act of 1812, are complained of as not being in conformity to law. It is main-stained that an out-lot, within the terms of the act, must be both adjoining and belonging to the town or village of which it is an appurtenant; or, if not so, it must at least be shown to be adjoining the town, or a civil dependency appurtenant to it. It has been said that the question as to what is an out-lot, is a mixed question of law and fact. But it appears to me, that .-subject to the control in granting a new trial, it is mainly a • question for a jury. No court, by a prospective definition, can embrace all the lots which would come under the class of “ out-dots.” Bach lot must depend on the evidence in relation to it, In order to its classification. It is obvious that it is not necessary that a lot should touch the town to make it an out-lot. If it is adjacent to the common fields, it is near the town, as the (Common fields must, in the words of the act, be adjoining and belonging- to the town. That the lot was cultivated by an inhabitant of the town, is some evidence of its dependence, or of its belonging to it. The fact that the claimant must be an inhabitant of the town, in order to be entitled to a confirmation, does not deprive this circumstance of its weight, in showing that [257]*257the lot was a dependency, taken in connection with its contiguity to the town. The plaintiff claims the land in controversy as a part of a civil dependency of the ancient village. On its being such, her right to maintain her action depends. It must be adjoining and belonging, in order to be commons. If it is sufficiently adjoining and belonging to be commons, why not so to be an out-lot; for it is only necessary that a lot should be adjoining and belonging to the town, to be an out-lot in the words of the law. In our opinion, there was nothing in the instructions given on the subject of what constituted an out-lot, to induce us to disturb the judgment, considering the subject of the action instituted by the plaintiff.
Judge Ryland concurring, the judgment will be affirmed. Judge Leonard was not upon the bench when the case was heard.