Tombkins, J.,
delivered ike opinion of the Court.
John Bingham brought his action Of ejectment against Frederick Dent, in the Circuit Court of St. Louis county. The judge of that court having been counsel in the cause, it was removed to the Court of Common Pleas. Bingham obtained a judgment in the last-mentioned court, to reverse which, Dent prosecutes this appeal.
On the trial of the cause, the plaintiff proved the incorporation of the town of Carondelet on the 20th day of August, 1832.
The order of the court recites, among other things, that, from henceforth, the inhabitants, &c., shall be a body politic and corporate, by the name and style of “ The Inhabitants of the Town of Carondelette.”
Bingham claimed the land sued for, under the town; and the instrument of waiting by which he claims purports to be made and executed by and between “ The board of trustees of the town of Carondelette aforesaid, parties of the first, and John Bingham party of the second part.”
It was admitted that, at the commencement of this suit, the defendant was in the possession of the portion of lot No. (41) forty-one in the land claimed, and laid off by the inhabitants of the town of Carondelet as commons, which was included within the lines of the survey of the confirmation to Gabriel Cerre, under a concession made to him in 1789, to be hereinafter noticed, which portion contained 28§ acres, according to the plat and survey made by order of the Court in this case.
The plaintiff then gave in evidence the proceedings before the board of commissioners appointed under the act of Congress of 2d of March, 1805.
On the 7th June, 1808, they gave notice of their claim to the recorder of land titles for the territory of Louisiana, by w'hich it appears, that the inhabitants ■of Vide Poche, (Carondelet) in the district of Saint Louis, claim title to six ■thousand arpens of land, adjoining said village, by virtue of a concession from Don Zenon Trudeau, lieutenant-governor of Upper Louisiana, dated the 7th of December, 1796.
The second document is a petition on behalf of the inhabitants of the village, signed by Jean B. Gamache. This petition, dated 6th December, 1796, refers to one previously presented, on the 5th October then next preceding, both praying a continuation of their lands; by which, I presume, is meant, an extension or increase of the quantity of their land, for the purpose of cultivation.,
To this petition, the lieutenant-governor answers, that “The land which is demanded is included in what has been reserved for the supply of the wood necessary for the village of Carondelet, and the demand of Mr. Gamache cannot take place; as also, all the concessions granted in the direction of the-line taken [586]*586at the end of the lands of the said village, and running parallel with the Mississippi river, one hundred and fifty arpeas lower down.” All these documents appear to have suffered, probably from the fact of the several transcribers being unacquainted with the French language. The meaning of the above passage seems to be this: “that the demand of Mr. Gamaehe cannot be allowed; and that no other concessions made in the direction of a line beginning at the (west) end of the lands of the village, and running parallel with the river Mississippi, one hundred and fifty arpens lower down, can be allowed.”
From all the evidence introduced, we collect, that the land lying betwixt this line and the river (which lies east of the line) was intended to be reserved at least from occupation by individuals, and therefore denied by him to the village for cultivation; and an intimation was given, that those who had located their claims or concessions on that ground, would not be allowed to obtain a grant from the intendant, the agent of the crown. In all the petitions which I have seen, the petitioner seems to consider himself bound to provide that his location do not interfere with others.
Next in order comes the certificate of Mr. Soulard, the surveyor, dated the 25th December, 1797; in which it is stated, that on the 21st day of December, in virtue of the order which the lieutenant-governor directed to M. de Triget, captain-commandant of said village, to enjoin to the inhabitants to make known the line of a tract of land which had been granted to them, under date of 7th of December, 1796, which line is to be parallel with those of Messrs. Antonie> . Reilhc and Alvarez. The said inhabitants, in the presence of their commandant, agreed to have their line drawn, (run) to be taken from the last butt (probably stake) set at the extreme part or depth of their land, which had been previously surveyed by Mr. Pierre Chouteau, (that is, they agreed that their line should begin at the south-west corner of their common fields, or forty-arpens lots.) These lots appear, from the surveys in evidence, to lie west of the town; and as the commons lay south of the common-field lots, the beginning corner of the survey of the commons would be the south-west corner of that common field. The surveyor then states, that, “ Having found the course of these western lines of the common fields, or forty-arpens lots, to be S. 28 .west, he followed the same course 23 arpens 3-£ perches, at which distance he found the river Des Peres. The end of the line on the border of the said river has been marked with a little stone, having for witness two flints and a ball of lead flattened, &c. And that this may serve the said inhabitants as proof thereof, I have given these presents at Saint Louis, of Illinois, the 25th of December, 1791. Signed,” &c.
. In another certificate, dated February 18,1806, Mr. Soulard, the same surveyor, certifies, that the inhabitants of the village of Carondelet required him to measure for them, either by himself or by one of his deputies, the land which had been granted to them for commons, by the lieutenant-governor, Don Zenon Trudeau; that Mr. Bartholomew Cousin went to the village of Carondelet for that purpose; that, at the moment of proceeding, the compass was out of order, and could not be made immediately fit for use, &c. No survey was made. The recorder of land titles, on the 22d day of August, 1834, certifies, that this claim [587]*587to commons is confirmed under the provisions of the first section of the act of Congress of 13th June, 1812, entitled, “An act making further provisions for the settling the claims to land in the territory of Missouri, and of the several acts of Congress supplementary thereto,” approved on the 26th day of May, 1824, and of the 27th January, 1831, and refers to the plat. The tract of land bounded west by a line running, as above-mentioned, parallel with the line of Alvarez, 150 arpens, contains 9906 acres and yW, betwixt it and the Mississippi, according to Brown’s survey, made by order of the court in this cause.
The petition of Alvarez was also given in evidence, and all the proceedings on it, to the confirmation, as evidence of the right of common enjoyed east of his land before the concession made to him on the 15th of November, 1796.
The material parts of the petition, as translated by the late Judge Leduc, are in these words: “Egenis Alvarez, habitant, resident, &c., humbly petitions your worship to be pleased to grant him, as a title of property, the vacant land which is situate departing from the limits of the ‘establishment’ of Carondelet, as far as those of Mr. Reilhe, which your petitioner considers to be about six arpens in front, facing the river Des Peres, by forty arpens in depth, and on the other side of said river ten arpens in front, departing from the said limits of Carondelet, and terminating with lands of the domain, by forty in depth, the whole without prejudice to any person, subjecting himself, as he should do, to the provisions of the laws; which favor he hopes to gain of your grand equity.”
Dent, claiming under Gabriel Cerre, proved notice to the recorder of land titles on the 28th November, 1812, and the concession by Perez, dated 15lh of March, 1789. In February, 1833, the board recommended this claim, amounting to 6000 arpens, for confirmation, and it was confirmed by the act of 4th July, 1836.
Of the instructions asked by the plaintiff, the court gave —
The 1st: viz., That the act of Congress, approved the 13lh of June, 1812, entitled, “An act making further provisions for settling land claims in the territory of Missouri,” and the act of Congress approved the 27th of January, 1831, entitled, “ An act further supplemental to the act entitled, ‘ An act making further provisions for settling the claims to land in the territory of Missouri,’ passed the I3th of June, 1812,” confirmed to the inhabitants of the village of Carondelet, alias Vide Poehe, all the land lying south, of the common fields of Carondelet, and the village of Carondelet, and between the Mississippi river and a line run from the south-west corner of the said common fields, running south 28 west, one hundred and fifty arpens, saving and excepting therefrom all claims theretofore confirmed by the board of commissioners for adjusting and settling claims to land in the territory of Missouri, and all complete grants within the said limits made by the French or Spanish governments, while those governments respectively had possession of the country, and such confirmation lakes effect from the approval of said acts of Congress.
The 2d: That if the jury believe, from the evidence, that the land in the declaration mentioned, or any part thereof, is witlan the exterior lines of the claims to commons confirmed to the inhabitants of the village of Carondelet by the act of Congress approved 13th of June, 1812, and that of 27th January, 1831, entitled [588]*588as above in first instructions, and not embraced within any claim theretofore confirmed by the board of commissioners for settling and adjusting claims to land in the territory of Missouri, nor any complete grant made by the French or Spanish governments, while those governments respectively had possession of the country, and that the defendant, at the time of the commencement of this suit, was in -possession of the said land in the declaration mentioned, or any part thereof, then, as to the same so possessed and within such exterior lines, the plaintiff is entitled to recover in this action.
The 7th: That the claim of the inhabitants of the village of Carondelet, as presented to the old board of commissioners, and given in evidence in this case, was adverse to .all concession inchoate within the extent of the claim, which were not expressly, or by necessary implication, excepted therefrom.
The 8th: That the order of the lieutenant-governor, on the petition of Gamache, constituting a part of the documents before the board of commissioners, which, with the proceedings thereon, have been heard in evidence in this case, is a reservation by legal authority, and is in effect a concession for the purpose of commons.
The 9th: That the confirmation of commons to the inhabitants of the village of Carondelet, read in evidence in this case, was adverse to all concessions within the extent of this confirmation which had not been previously confirmed, or were not complete titles under the French or Spanish governments.
And the 10th; That the claim for commons before the board of commissioners, and acted upon by Congress, in passing the act of 13th June, 1812, and read in evidence in this case, embraced the grant within the lines of the commons made to Gabriel Cerre; and the confirmation of that claim by the'act of 13th June, 1812, and the relinquishment by the supplemental act of the 27th of January, 1831, passed the legal title to all the land within such lines, which was in the United States; and the subsequent confirmation of the grant to Gabriel Cerre, read in evidence, passed no title which is a bar to the recovery by the plaintiff in this action.
The,court refused to give the third, fourth, fifth, sixth and’eleventh instructions asked by the plaintiff.
The defendant then asked, and the court refused to give, the instructions following:
2d: That the lease to the plaintiff, by the board of trustees of the town of Carondelet, given in evidence in this case, passed no title to the land in question, on which a recovery can be had.
4th: That no land was confirmed to the inhabitants of the town of Carondelet, under the act of Congress of the 13th June, 1812, south of the river Des Peres.
5th: If the jury believe, from the evidence, that the claims of the inhabitants of the village of Carondelet for commons, as presented to the board of commissioners, and given in evidence in this case, was not adverse to the claim of Gabriel Cerré under which the defendant claims, then the confirmation, under the said act of Congress of 13th June, 1812, did not affect any land within that concession.
6th: If the jury believe, from the evidence, that there was ho grant, concession or survey of any kind south of the river Des Peres, as commons for the village of Carondelet, nor any use of land there for that purpose, under or by the authority [589]*589of the Spanish government, then the act of Congress aforesaid did not confirm any land there as commons.
7th: That the decree, or reply of Lieutenant-governor Trudeau to the petition of Gamache, dated 7th December, 1797, given in evidence by the plaintiff, is no grant or concession of any land to the inhabitants' or village of Carondelet for commons.
8th: That no land was confirmed as commons for the village of Carondelet by the said act of 13th June, 1812, westwardly of the line indicated in the said decree of Zenon Trudeau, which is a line commencing at the south-west corner of Carondelet common-field lots, and running one hundred and fifty arpens parallel with the Mississippi river.
9th: That if the jury believe, from the evidence, that the commissioner of the general land-office has officially disapproved of the survey of the commons of Carondelet, by Joseph C. Brown, (given in evidence by the plaintiff,) and ordered a new survey thereof, that then the said Brown’s survey is no evidence of the extent or boundary of the said commons.
10th: That the said survey of said commons by said Brown, if not made in conformity to the claim to commons by the inhabitants of Carondelet before the old board of commissioners, as given in evidence by the plaintiff, is no evidence of the extent or boundary of said commons, as against the concession to Gabriel Cerre, given in evidence by the defendant.
11th; That Brown’s survey of said commons is not in conformity with the claims aforesaid to commons, as confirmed by act of Congress of 13th June, 1812.
12th: That the confirmation of the claim of the inhabitants of Vide Poehe to commons, as presented to the board of commissioners, is not more extensive than the claim; and that, if the claim to the 6000 arpens,-as asserted before the board of commissioners, can be satisfied without interfering with the land claimed before the board by Gabriel Cerre, and afterwards confirmed by the act of 4th July, 1836, then the plaintiff is not entitled to recover for any land embraced in the claim of said Cerre.
13th: That the grant by Zenon Trudeau, lieutenant-governor, dated 7th of December, 1796, does not annul the grant within the lines of the commons made to Gabriel Cerre; and that the claim for commons before the board of commissioners, and acted upon by Congress, in passing the act of 13th June, 1812, has no greater effect than the said grant, and does not cover the land embraced within the said claim of Cerre.
The court gave the first and third instructions asked by the defendant.
The only evidence of the right of the village of Carondelet to the land here claimed as commons, is in the refusal of the lieutenant-governor, Trudeau, on 7th of December, 1796, to grant the said village a tract of land for cultivation, on the petition of Gamache above mentioned, and in the certified return of Mr. Soulard, of a survey made on the 21st day of December, by virtue of an order which the lieutenant-governor directed to Mr. De Triget, captain-commandant of said village, to enjoin on the inhabitants to make known the line of a tract of land which had been granted to them under date of the 7th December, 1796, which [590]*590line is to be parallel with those of Alvarez and Reihle. It is then stated that the inhabitants, in the presence of their commandant, agreed that their lines should begin as above explained, at the south-west corner of their forty arpens or common-field lots. The return of Mr. Soulard being official, and being made in obedience to an order of the lieutenant-governor, which order must be supposed (to be lost, as we are told by General Milburn, who had been surveyor-general, that it could not be found in the office while he had the control; this return, I say, must be considered of higher authority than the declaration of Trudeau, made in his answer to the petition of the village, presented to him through Gamache, the only object of that answer being to tell Gamache that his demand could not be allowed.
It was proper for him to speak with more precision to the surveyor who was to execute his order, than to Gamache, who was only a petitioner in behalf of the village, and whose petition the lieutenant-governor, in said answer, intended only to refuse. In his order, which was the warrant for the survey made by Mr. Soulard, it is stated, that the line of the grant was to be parallel to the lines of Reihle and Alvarez, and the villagers were required to show at what point they would begin. They chose to begin at the south-west corner of their common fields, or forty-arpens lots.
They might have begun any where, in the line of their forty-arpens lots, betwixt the eastern and western ends. They chose to begin, as above stated, at the southwest corner of their forty-arpens lots, so that their commons were to be bounded on the north by the forty-arpens lots, on the east by the Mississippi, on the west by a line parallel to the lines of Reihle and Alvarez, and on the south by a line to include, as the petitioners admit, 6000 arpens; and where this closing line must be traced, that is to say, at what distance it was to commence from the place of beginning, (the south-west — of the common fields, or forty-arpens lots,) on the line directed by the lieutenant-governor to be run parallel with the lines of Reilhe and Alvarez, could be ascertained by actual survey only. It is not only absurd to suppose that the lieutenant-governor would, in his office, pretend to dictate how long that western line must be to contain 6000 arpens of land, but it is contrary to the practice of such officers. They prescribe the quantity, and leave the remaining part to the party petitioning, and the surveyor.
To make common sense of the writing called Gamache’s petition, (in itself unintelligible, either in the original or the translation,) we must suppose that Gamache and the villagers had some previous knowledge of the intention of the lieutenant-governor to decree a grant of commons, and in anticipation of such grant he, Gamache, on behalf of the village, presented the petition on the 6th of December, for a part of this land for the purposes of cultivation; for the lieutenant-governor answers — “The land which is demanded is contained within that which is reserved to furnish the wood which is necessary to the village of Carondelet, and that the demand cannot be allowed, (me pent avoir, lien, Sec.,) nor any others made in the direction of a line beginning at the end of the lands of said village, and running parallel to the Mississippi, one hundred and fifty arpens [591]*591lower down.” The answer to the petition is dated on the 7th of December, 1796, one day later than the petition itself.
Mr. Soulard, in his official certificate, states this concession of commons to have been made, on the 7th of December, 1796, and according to him the western line of the commons was ordered to be parallel — not to the Mississippi, but to the lines of Reilhe and Alvarez, and the inhabitants were to make known the beginning, and nothing is said to Mr. Soulard about the length of this line. The very object of the survey was to ascertain the length of that line.
It cannot surely be supposed, that Mr. Soulard, the surveyor, was so grossly ignorant as to call this answer to Gamaehe’s petition a grant of commons to the village. We must suppose', then, that he recites truly the concession, and that it is lost.
The answer of the lieutenant-governor was accurate enough for the purposes of Gamache, and for those whose interests he represented — that they could obtain no land betwixt the Mississippi and a line drawn from the south-west corner of the common-field lots of Carondelet, one hundred and fifty arpens lower down, parallel to the river. This was accurate enough for their -purposes, especially as he intended, on the same day, to make the order of survey, and, according to Mr. Soulard’s recital in his official act, did make it. Mr. Trudeau might have thought the lines of Reilhe and Alvarez to be parallel to the Mississippi, for let it be recollected, that he did not there have before his eyes, as we now have, the plat made by Mr. Brown forty years afterwards.
The answer to the petition of Gamache was sufficiently accurate for common purposes: but when he addresses the officers who were to carry his orders into execution, his tone is changed; he is accurate and precise; the western line of the commons is to be parallel to the lines of Reilhe and Alvarez; the villagers may choose the place of beginning. Their interest was the inducement to begin on the southern boundary of the common-field lots; and the length of that line, to contain, betwixt it and the Mississippi, 6000 arpens, must depend on its distance from the Mississippi. And the answer to Gamache’s petition is, that the western line will begin at the south-west corner of the common-field lots, and run 150 arpens lower down, parallel to the river Mississippi, within which limits he, the lieutenant-governor, might be assured the quantity of 6000 arpens would be included. As has been observed, the petition for these commons, and the order of survey, must be presumed to be lost, or rather we are left to presume, from the certified return of the surveyor, that there was a petition for the common, and a decree in favor of the petition, and that, by the decree, the petitioners were allowed to choose the place of beginning, provided the line were parallel to the lines of Reilhe and Alvarez. The petitioners themselves have furnished the amount of land prayed for and accorded to their prayer, and it is quite idle to suppose that the lieutenant-governor would, from his office, pretend to dictate to the surveyor of his district how long that line must be, to contain betwixt it and the Mississippi the quantity of land which he conceded; much more idle would it be to suppose that he should, in his answer to Gamache’s petition, given on the same day, be supposed to be making out an order, under which Mr. Soulard, the surveyor, [592]*592was intended to act. We are driven, then, to the conclusion, that the statement of the place of beginning, and the course of the western boundary line, as set out in Mr. Soulard’s official act, is true: this statement is certainly the highest evidence, after the petition and decree, and cannot be disproved by anything else than the absent documents themselves, viz., the petition and decree. In fact, the answer to Gamaehe’s petition is not admissible evidence in this case: it is no more than hearsay evidence on another subject.
We may certainly trust the petitioners for the quantity; their modesty would not hinder them from asking enough; and it is so absurd to suppose that Mr. Trudeau would order the surveyor how long to make that western line, he ■himself not even knowing how far west of the river the villagers might elect to fix the north-west corner of their commons, that we are equally driven to the conclusion, that it was intended that Mr. Soulard, the surveyor, should ascertain the length of that line, in order to include the quantity of 6000 arpens, a work, it must be admitted, of some labor, inasmuch as it is in evidence that neither is the line parallel to the river, nor is the river exactly straight opposite to that line.
In my opinion, then, the western line of the commons was run in the proper direction, as reported in the survey of Mr. Brown given in evidence, but that line should have continued so far only from the south-west corner of the common-field lots, as to include betwixt itself and the river the quantity of 6000 arpens; and whether the land in dispute would be included within such limits, does not appear on this record.
But it is contended, that the petition of Alvarez is evidence of the existence of commons south of the river Des Peres previous to his concession, which is one month previous to the concession of commons recited by Mr. Soulard’s official return. To say nothing of the absurdity of a title accruing without concession, which could accrue only by concession, and by the complete title issuing from the intendant-general, let us resort to the petition itself: it prays for land to depart both north and south of the river Des Peres, from the “limits of the establishment of Carondeletand it is contended, that this means the commons of Carondelet. The corresponding Spanish word is, Establecimiento: in French, it is Establissement: in English, Establishment: all derived from the Latin, Stabilimentum, I suppose, as we are told, by Ainsworth, the English word Establishment is, and this word means nothing more, in the popular language of the Frepch of Missouri, than is implied, in the popular language of the Anglo-Americans of the same country, by the word “settlement.” A creek in Saint Genevieve county is extensively known by the name of the “Establishment creek,” on account of a settlement made there, many years since, by some French families. No man, even moderately Acquainted with the history of the Spanish language, could believe, that a Spanish word, derived from the Latin “ stabilimentum,” or one which corresponded to the French word “ establissement,” would be used for'the English word “common;” and still less can it be believed that the translator to the board of commissioners, who, it is well known, had been secretary to the Spanish lieutenant-governor, would have failed to translate the word “ common,” instead of establishment, as he has rendered it. But what establishment or set[593]*593tlement had the village of Carondelet, from the limits of which Alvarez prayed that his land might depart? The answer is easily made from the record. It was this mill, and a cabin or two, perhaps, near it, which Gamache mentions, and which emboldened the villagers, with a presumption truly corporate, to demand all the land from the Mississippi river on the east, to the farm of Constant on the west, and from the river Des Peres on the south, to the village lots on the north, about three thousand acres, perhaps. ' It may be fairly presumed, that they had long claimed this land as appurtenant to the mill, of which Gamache speaks very ostentatiously in the petition above mentioned. It might thus have acquired the name of the establishment of Carondelet; for it requires no stretch of imagination to enable one to conjecture that the mill was on the river Des Peres, and on the land prayed for. But it is idle to say, that a letter of Trudeau, denying certain lands to the village for purposes of cultivation, is a decree granting the same lands to the same village for commons: and the official return of Mr. Soulard is evidence that a decree had been made; and, as is contended by Mr. Gamble, the village must either take the survey where he terminated it, on the bank of the river Des Peres, or they must take the quantity demanded, 6000 arpens. The certificate of Mr. Soulard, subsequently given, (in 1806) is not evidence. His •authority to survey, under a decree of the Spanish officer, had then ceased. It cannot, however, be said that his proper return shows that he had completed his survey, but it shows rather the contrary. The survey, then, ought to be completed in conformity to what is learned from Mr. Soulard’s return, and the quantity stated by the petitioners.
It remains to be inquired, whether the confirmation certified by the recorder, on the 22d of August, A.D. 1834, to have been made for 6000 arpens, in virtue of the act of 13th June, 1812, entitled, “An act making further provisions for settling claims to land in the territory of Missouri,” and other acts of Congress, to wit, the act of 26th May, 1824, and that of 27th January, 1831, be adverse to that of Dent claiming under Gabriel Cerre. It will be borne in mind, that the concession to Cerre was made on the 15th of March, 1789, by Perez, seven years before that to the village of Carondelet. Whenever the term prescribed to one board has expired, Congress have created another tribunal, excluding from it the right to adjudicate on cases already decided. Frederick Bates, under the act of 13th June, 1812, was clothed with all the powers of the first board, but cases decided on by that board were withdrawn from his jurisdiction.
In Bird vs. Montgomery, 6 Mo. Rep., it appears, that the claim to the Saint Charles commons, confirmed by the act of 1812, prevailed over that of Guigarre reported by the recorder for confirmation in 1815, and consequently confirmed by the act of the 29th April, 1816, p. 510. In the case of Newman vs. Lawless, 6 Mo. Rep., 293, I advanced the opinion, that the act of 1812, and the above-mentioned act of 1824, availed the several claimants of village lots, out-lots, and commons, nothing, unless they presented their claims before the recorder, but operated only to reserve those lots and lands from sale. Congress, in passing the act of 1824, seems to have entertained that opinion also. In this case, the president of the court did not sit, and my colleague, Judge Napton, concurring in [594]*594the judgment entered, expressed, in writing, his dissent on the point above mentioned. In the ease of John Hammond vs. President and Directors of Saint Louis Public Schools, decided at this term, (July, 1843,) I expressed the same opinion, and gave my reasons more at large than in the case of Newman vs. Lawless. But neither of the sitting judges expressed either assent or dissent, although they gave a separate opinion.
According to my opinion, then, on the last-mentioned point, the corporation, not having appeared, on this record, to have brought their claim either before the recorder or the late board of commissioners, have shown no title to any commons, and the plaintiff in error must, in this view of the case, ultimately gain it; but it would be decided otherwise, on the authority of Bird vs. Montgomery, 6 Mo. Rep., 510, above mentioned.
The survey of Mr. Brown not being made, as I believe, according to the intention of the lieutenant-governor, Trudeau, the Court of Common Pleas committed error in giving the first and second instructions asked by the plaintiff below.
For the same reason, I am of opinion, that the tenth instruction demanded by the plaintiff below, defendant in error here, should not have been given.
In the seventh instruction asked by the defendant in error, I can see no meaning. I suppose that every person and every body corporate, that presented a claim before the old board of commissioners, set up a claim adverse to all the world, except the United States; and one principal object in the establishment of that board was, to separate the private property of one individual from that of another, and to ascertain to which of two individuals, claiming the same property, that property belonged. That board does not appear, on this record, to have confirmed the village claim to commons; and the claim filed before that board, consequently, amounts to nothing. The seventh instruction, then, should not have been given.
The eighth instruction was, in my opinion, most erroneously given; for the lieutenant-governor made no order on the petition of Gamache, in this record set forth, except, that the village of Carondelet could not obtain the land demanded by it, for the purpose of cultivation. It is true, that he assigned a reason for refusing that demand, but by no plausible reasoning ever can that reason, assigned for refusing the land demanded by the inhabitants of Vide Poche, for purposes of cultivation, be tortured into a concession to the inhabitants of the said village of 9,905,2;,\ acres of land for commons. It does not even amount to a verbal promise, or any kind of a promise, to do so; he says it is reserved! How reserved? No surveyor would receive this written answer to Gamache’s petition as an order to survey so much land for commons. If, then, there is any evidence of their claim, it is contained in the return of Mr. Sonlard, above mentioned, as certified by him. The eighth instruction, then, should not, in my opinion, have been given.
The ninth instruction. If any confirmation of commons to the village of Carondelet was read in evidence, it has escaped me, as it well may have done, in such a mass of matter appearing to me wholly irrelevant. Mr. Conway, the recorder, certifies that the claim to 6000 arpens was confirmed by certain acts of Congress, of which, I suppose, this Court was in duty bound to take notice. According to the [595]*595case above mentioned, of Bird vs. Montgomery, 6 Mo. Rep., 510, this instruction should have'been given. In my opinion, there has been no confirmation of this land, or any part of it, to the village, inasmuch as the several acts of Congress, as I have above said, operated only to reserve this land from sale by the register and receiver, and to appropriate to the use of the United States, for military purposes and for schools, such part as should not be proved before the recorder to be either private property or commons, and it was still the duty of all parties claiming town or village lots and commons, after the act of 1812, and the other ■supplementary acts, to come in and make proof, before the recorder, of their respective claims, for the purpose, as well of ascertaining the property of individuals and towns and villages respectively, as of separating the private property of each person, town or village, from that of the United States and the schools.
Of thirteen instructions asked by the plaintiff in error, the court refused the second, fourth, fifth, &c., but gave the first and third.
The second instruction asked by the plaintiff in error should, in my opinion, have been given. As above mentioned, the inhabitants of Carondelet were incorporated by the name and style of “ The Inhabitants of Carondelet,” and the lease purports to be executed by and between the trustees of the town of Carondelet, parties of the •first part, and John Bingham, party of the second part.' — See 2 Bac. Ab., 5 and 6.
4th Instruction. — It does not appear, from the survey, how much land lies north of the river Des Peres. I should say that, according to the decisions of this Court hitherto made, 6000 arpens of land were confirmed to the village, to begin at the south-west corner of the forty-arpens lots, and run for quantity parallel to the lines of Alvarez and Reilhe; but my present heleif is, that the village can get nothing, as its claim does not appear on this record to have been presented to the recorder, or to any board of commissioners, for the ascertainment of its limits.
5th Instruction. — I have above said, .that, in my opinion, each claim presented before the first board of commissioners was adverse to the other, and that, consequently, each claimant was bound to attend, and contest every claim conflicting with his own.
6th: The sixth instruction should not, in my opinion, have been given, the village being entitled, in my opinion, to 6000 arpens, surveyed as above mentioned, and the survey does not show whether there was 6000 arpens north of the river Des Peres. '
7th: The seventh should, in m3' opinion, have been given.
8th: This instruction should not have been given: the only legitimate intimation of Trudeau’s will, of which we have any evidence, is contained in Mr. Soulard’s certified return of his survey, and this calls for a line runing parallel to. the lines of Reilhe and Alvarez.
9th: This instruction should not have been given: the right of property in the contested land is to be decided by the laws of the United Slates, as pronounced by the courts, established by act of Congress, either of general or special jurisdiction, and not by the commissioner of the general land-office, a mere ministerial officer.
10th: This instruction should have been given.
[596]*59611th: This instruction, also, should have been given, as the village claimed only 6000 arpens, and Mr. SouJard’s certificate shows, that the length of the western line was not prescribed to him by any legal authority, and common sense shows that no such order could have been given by the lieutenant-governor.
12th: I cannot see any propriety in the twelfth instruction. It was the duty of Gabriel Cerre to attend the board: nothing hindered him from attending the old board; and if, by his neglect to do so, he lose his land, he has no reason to complain. The grant of the lieutenant-governor was a nullity, until ratified by a patent from the intendant, and he, having shown gross negligence under the Spanish government, can have nothing to urge against the United States, before whose commissioners he has neglected to appear, to adjust his claims.
13th: This is answered in the twelfth instruction.
The judgment of the Court of Common Pleas is reversed.