Scott, Judge.
In the cas3 of Trotter against the Public Schools of St. Louis, I assented to the affirmance of the judgment of the inferior court, because it appeared to ms then that all the lands not rightfully claimed by individuals or held as commons, included in the out boundary of the general survey directed by the first section of the act of 13th June, 1812, were reserved for the use of schools. It seemed to me that the survey contemplated by the act was the only mode of ascertaining the lands that were reserved. The question was one abounding in difficulties, and an .accurate knowledge of the extent of the town of St. Louis and the quantity of land not owned by individuals nor held as commons included in the survey, were necessary in order to arrive at a just conclusion as to the extent of the reservation intended by the act of Congress.
The question in this case involved was at one time of little importance, and by timely legislation might have been put at rest at an inconsiderable sacrifice. But delays have been interposed, time has rolled on, and St. Louis has become a wealthy, populous and rapidly increasing city, in which real estate has increased in value greatly beyond the most sanguine expectations of its early inhabitants. Many have invested their all in the purchase and improvement of lots. These considerations should admonish courts to listen v/ith caution to the complaints of those who have long^delayed the assertion of their rights. The utility and benevolence of the objects of a claim can have no influence in determining its justice. In a government of laws, it cannot be expedient to sacrifice the rights of the humblest individual of the Community for any purpose however grand or benevolent.
There are two parties claiming the same parcel of land under thé government of the United States. One claimant asserts that the land was first given to him, therefore the other can have no right to it. It is obvious that this argument is a petitio principii, or a begging of the question. The very matter in dispute is whether the land was ever given to him who asserts the prior right. In determining this question, it is necessary to inquire on what principle' the general survey of the town is made prima facie evidence of the right of one party against the other. That it is an official act, and properly authenticated, are not surely the only requisites to make a document evidence in a cause. If, in a controversy between the plaintiff in this action and the General Government or any other party, it had been determined by the highest tribunal known to the constitution and laws of the United States that the land in contro[258]*258versy was the property of the plaintiff, would that judgment have been any evidence against the present defendant? It is clear that it could not be thus used, because it is res inter alios acta. If the judgments of the highest judicial tribunals cannot be used as evidence against those who are no parties to them, on what principle are the acts of a mere ministerial officer, in a one sided proceeding, evidence against those claiming rights under the laws who are strangers to them? Can an instance be produced in which it is allowed to a ministerial officer to- affect injuriously the rights of one claiming land under the laws of the United ' States in a proceeding of which he has no notice and to- which he is no party? It is not pretended that any law of Congress confers any such effect on the survey. Congress could never have designed that a ministerial officer should usurp the province of the courts, and determine questions whose sole cognizance belongs to them. The object of the survey directed by the act was obvious. All the lands in the then territory of Louisiana not owned by individuals, belonged to the United States. To them were entrusted its disposition. It was Necessary to discriminate private from public property, to enable the Government to discharge the duty confided to it. Surveys were directed to. be made as guides to its officers, and these surveys, so far as the Government is concerned, are presumed to be correct. Faith is reposed in them, and officers acting under them in the disposition of the public domain will be justified. But because the Government is willing to confide to its own officers the disposition of its own, lands, surely it cannot thence be inferred that it intended that those officers should determine whether lands granted to others were rightfully granted, and thus assume the functions- of the courts of the land, in making surveys, the officer aets ex-parte, and concludes no one except the United States. The question between individual claimants is still to be decided by the courts according to- the evidence before them. The earliest opinions of this Cotírt were, I conceive, in accordance with these views. In the ease of Vasseur vs. Benton, I Mo. R., 212, 29b, the act of 1812 first underwent a discussion, and the court, in speaking of the powers of the Recorder under that act, says, that he (the Recorder) bad no authority to enter into an> investigation of or decide on the titles of individuals to those town lots, and that any conflicting claims between them to any of these lots, ought to be decided in a due course of law, according to their priority of possession, cultivation, or inhabitation. A contrary construction would be predicated upon the presumption that Congress had the power? or at least that they meant, whicb we are far from believing, to institute [259]*259a tribunal to judge of the private rights and claims of contending individuals; and it would in effect be saying, that the Recorder had the right of judging of those claims, not only between private individuals, but also between them and the inhabitants at large, to whom, for the use oí schoolg, all lots net rightfully claimed had been reserved and given. This doctrine, so consonant to principles of law, is not overthrown or impugned by any thing that is said in the case of Janis vs. Gurno, 4 Mo. R., 460, in which it was held that the certificate of the Recorder under the act of 1824, which is supplementary to the act of 1812, confirming a claim to a village lot, gives sufficient title to maintain an ejectment against one not having a better title. It is there said expressly, that the act of Congress did not declare the effect of the certificate, and it was allowed the weight of prima facie evidence, because it was enacted by our statute of ejectment, (a statute passed subsequent to the opinion in the case of Vasseur vs. Benton,) that a certificate of confirmation should be a sufficient titl* whereon to maintain an ejectment against one not having a better title. We have no statute which makes the survey in this case a title sufficient to enable a party to maintain an ejectment on it, consequently, the principle of the case of Janis vs. Gurno, is not applicable. Indeed, had it been otherwise, and had that case been founded on the ground supposed, X would not be disposed to extend it further than respect to authorities obliges me. If the ease was followed, it would be solely from a regard to precedent.
If then, in controversies between the St. Louis Public Schools and individuals, relative to lots reserved under the act of 1812 for their use, the survey is not prima facie evidence of title in them, it follows, that in such controversies it is a matter of indifference to those claiming adversely to the schools what extent is given to the out boundary of th® town, or in what manner its lines are run; it may be made ce-extensive with the limits of the State so far as they are interested, as the act of the officer cannot affect their rights and as it is a matter which concerns the general government alone.
The survey then being thrown out of the question, nothing is left t© ascertain the extent of the reservation made by the act of 1812, but the words of the act. If Congress intended that all vacant lands within the out boundary of the town should be reserved, the donation was a vague -me. It was limited to the l-2Dth of the contents of the survey which was directed to be made. No two surveyors would make the survey in the same manner, let one of them be unacquainted how it was made by the other. I do not .say that after a survey has been made, you may not [260]*260bring other surveyors than him who made it, who will approve it, and say that it is in conformity to the act of Congress. Indeed, it is admitted that the survey that has been made is not such a one as is contemplated by the law making the reservation. It is not as comprehensive as was designed by the act. If the survey as directed by law would include more vacant land than could be reserved, would it not be equitable to make all the holders of the vacant lands contribute to make up the one twentieth part, if not rate ably, at least in the order of time they acquired titles from the government, beginning with the latest title?
In passing the act of 1812, Congress looked at the French towns and' Tillages in the then Territory of Louisiana, as they were prior to the 20th December, 1803. If a lot had not been prior to that date rightfully claimed by reason of inhabitation, cultivation or possession, and if rightfully claimed, had been abandoned, the occupation of it in the interval between 1803 and 1812, would have conferred no title on its possessor. It would have been reserved. In order to be reserved, a lot must not have been occupied, cultivated or possessed, or if so, abandoned prior to the 20th December, 1803. That was the day on which the French auuthorities at New Orleans delivered possession of the Territory of Louisiana to the American Government. After that period, it is not pretended that there was any authority in any American tribunal or officer to grant lots in any town or village to its inhabitants. Under the Spanish Government a settlement could only be made on the royal domain with the consent of the proper officer. Intruders were expelled. Regulations existed prescribing the manner of laying off towns, disposing of the lots and granting commons and common field lots. Strother vs. Lucas, 12 Peters.
The term “out lot” used in the act of 1812, it seems, was not known to the early inhabitants of St. Louis. But St. Louis is only one of the to wns mentioned in that act. The term was known and understood at Ste. Genevieve-, one of the enumerated villages, and Ste. Genevieve at the date of the act, vied in importance with St. Louis and consequently was as apt to- be in the mind of the legislator as that city.
Congress was expressly informed that there would be vacancies and “vacant spots” in the general survey, yet they were not in terms reserved. In the construction of a private act of the Legislature, which is nothing more, than a grant, we may look at the information before the legislator and the circumstances under which it was passed, in order to enable us to ascertain its meaning.
As Congress intended by the second section of the act of 1812, to re-» [261]*261serve all town or village lots, out lots, and common field lots not rightfully claimed by individuals, is it not remarkable that the disjunctive conjunction “or” should have been used between the words, out lots, and common field lots, instead of the copulative conjunction “and,” unless we suppose that the term “out lots” in some of the enumerated towns and villages, was applied to common field lots.
Does not the phraseology of the latter part of the second section of the act of 1812, favor the construction I have put upon that act?
If all the vacant lands included in the general survey were reserved, why should it have been enacted, that the whole quantity of land contained in the lots reserved, should not exceed l-20th part of the whole lands included in the survey? If the entire quantity of vacant land was intended to be reserved, why not have said, that the quantity of vacant land included in the survey should not exceed l-20th of its contents?
For these reasons I am of opinion that the reservation made by the act of 1812, included only lots in the sense in which they were understood in the towns and villages enumerated in the act, and that what is a lot is a mixed question of law and fact to be ascertained by a jury under the directions of the court.
As to the constitutional question concerning the power of the Legislature of Missouri to divert the bounty of Congress from its original subjects by the act incorporating the plaintiffs, it may be remarked that there is nothing in the record on which it can be predicated. There is no evidence of the diversion of the bcunty of Congress from those for whom it was designed. If the act of the 13th February, 1833, incorporating the plaintiffs, is relied on for that purpose,'I do not conceive that it contains any such evidence. Nor is the defect remedied by a reference to the act incorporating the city of St. Louis.
The objection to the jurors was a valid one. It is a clear principle that jurors must bo omni exceptions majares, free from, every objection and wholly disinterested. The inclination to relax the rule as to questions of interest as to witnesses, has never been manifested as to jurors. Although the Legislature has made the inhabitants of a county competent jurors in suits in which the county is a party, ithas not relaxed the rule as to corporations. A regard to convenience dictated this change in the law. The books are full that challenges are allowed when the issue concerns a corporation or city, and they are to make the pannel, Hobart, folio 87, a; 3 Bacon, 756.
[262]*262Napton, Judge.
The principal questions in this case relate to the survey of the town of St. Louis, made in 1840 by the Surveyor General, and purporting to be made under the provisions of the act of Congress of 13th June, 1812.— This survey was admitted as evidence by the Circuit Court, and held to be conclusive against the defendant.
My opinion is, that the survey is prima facie evidence, but not conclusive.
The act of Congress of June 13, 1812, made it the duty of the principal deputy surveyor, to survey or cause to be surveyed and marked (where the same had not already been done) the out boundary lines of the several towns and villages, enumerated in the act, so as to include the out lots, common field lots and commons, respectively, belonging to each town or village. It then declares that “all town or village lots, out lots, or common field lots, included in such surveys, not rightfully owned or claimed by any private individuals, or held as commons, belonging to such towns or villages, or that the President of the United States, may not think proper to reserve for military purposes” are reserved for schools, provided, the whole quantity so reserved does not exceed one twentieth part of the whole survey. This act gives no title to the schools, as was determined by this Court in Hammond’s case. It was a mere reservation on the part of Congress, of lots partly for the use of the public schools, and partly for military purposes, limiting the number of lots dedicated to the former object to one twentieth of the whole amount of land embraced in the general survey. The act of May 26, 1824, declared it the duty of the individual claimants under the act of 1812, to prove up their lots before the recorder, with a view to enable the Surveyor General to distinguish the public from the private lots. That act also enjoined the surveyor under the instruction of the Commissioner of the General Land Officer, to survey, designate and set a part to the towns and villages, so many of the vacant town or village lots, out lots and common field lots, for the support of schools, as the President may not have reserved, before the time fixed for the settlement of the private claims, for military purposes, and not to exceed the proportions fixed in the act of 1812. The recorder by this same act, was authorized to issue his certificate of confirmation to the individual claimants. The act of January 27, 1831, relinquished the title of the United States to the town and village lots, out lots, and common field lots, which had been reserved for the support of schools by the 2nd section of the act of 1812.
[263]*263It will be seen by reference to these laws, that the United States never parted with their title to the school lots until 1831, and then, the phraseology of the law is so framed as to leave the number and locality of the lots precisely where the acts of 1812 and 1824hadplacedthem. The title was relinquished in 1831; but to what? To the lots reserved for the support of schools by the second section of the act of 1812. And what lots were so reserved? All lots included in the surveys of the out boundary of the towns or villages, not belonging to private individuals, or held as common — not reserved by the President for military purposes, and not en masse, exceeding a certain proportion of the whole tract embraced by the out boundary line.
How could the public schools move a step until the government had ascertained the facts upon which their title depended? Could they claim any particular lot, before a survey of the out boundary was made? and before any lots had been designated and set a part — before it was ascertained how many lots the President might see fit to reserve for military purposes, and before it was known what proportion the reserved lots bore to the area of the whole survey? However, this may be, it is certain that the surveyor was expressly directed to run an out boundary line ; — that express provision was made for enabling him to distinguish the private from the public lots; that he was authorized and expressly directed to note this distinction, and to designate and set apart to the schools such vacant lots as were not selected for military purposes, provided they did not exceed one twentieth of the whole area embraced in the general survey. All this the surveyor has done under the direction of the Commissioner of the General Land Office, and these official acts? duly authenticated to the court, Í consider as evidence — prima facie evidence, that the acts are what they purport to be. Courts of justice will pay so much respect to the official acts of a ministerial or executive officer, as to presume in favor of their propriety, until the contrary is shown. It is a general rule of evidence, having exceptions undoubtedly, like most other general rules; but the present is not one of them.
By the act of 1824, to which we have heretofore alluded, the Recorder (an officer of the United States) was directed to issue certificates to the private claimants, and these certificates have been held prima facie evidence of title. Upon what principle shall we allow these certificates of the Recorder as prima facie evidence of title in the private claimants, and exclude the official act of the Surveyor General, upon whom the same law devolved the duty of pointing out and setting apart the lots designed for the public schools? The Recorder could not settle definitively the [264]*264rights of private individuals, any more than the Surveyor could. Indeed, in the former case, the title of the United States had been extinquished by the act of 1812, and there was certainly much ground for contending that the officers of that government after 1812 ceased to have any control over the private claims. Not so, however, with the school lots. They were still within the control of Congress; after the passage of the act of 1812, and up to the act of 1831, Congress could have diverted the reservation. No specific lots were appropriated to the use of schools by the act of 1812, but further action on the part of Congress was necessary, and accordingly in 1824, the Surveyor General was given specific directions to ascertain the number and locality of the school lots. This duty was not performed until 1840, but when performed, I do not see how we shall exclude the act of the Surveyor, when it seems to constitute an essential link in the chain of title. The survey and designation by this officer must undoubtedly be evidence, that the lots designated as school lots, are such as the President has not thought proper to reserve for military purposes, and that they do not exceed one twentieth part of all the land included in the general survey of the town. On these points, it must be conceded, that this officer was authorized by the act of Congress to decide, and that his decision is conclusive.
His decision upon these questions is conclusive, because no one but the United States, whose agent he was, has any right or interest in disputing it. But he also decides, as he must necessarily do, that the lots designated are within the out boundary directed by the act of 1812; that they are village or town lots, out lots or common field lots, belonging to the village. Upon this question, his decision is not definitive, because be is not a judicial officer entrusted with the power of determining between conflicting claims. Yet I understand the survey to be presumptive evidence on this point also, because it is made by an officer, expressly authorized by law to perform the act, and it will be presumed to be correct, until the contrary is 'shown.
The survey then being admitted to make a prima facie case for the public schools, and the defendant having the right to dispute its correctness, it becomes material to settle the principles by which the propriety of the survey is to be tested.
I still think, as I expressed my opinion in the Trotter case, that Congress designed to dispose of every thing within the out boundary they directed; but as the out boundary was not to embrace any thing but the particulars enumerated, to-wit, the town or village lots, out lots and common field lots and commons, the propriety of including a specified [265]*265piece of ground within the survey, must after ail depend upon the fact, whether it belong to one of these designated classes of lots.
It is certainly intimated in the opinion in the case of Trotter, that the word out-lot might embrace tracts of land within the out boundary not known to the Spanish Government a's lots; but this idea, upon reflection, I must acknowledge to be inconsistent with the position assumed in that case and still adhered to, that village lots, out lots, common field lots and 'commons, should alone be comprehended within the outboundary. The same words are used to designate the lots confirmed to private claimants, as to describe those designed for reservation, and the language of the act must lead to the conclusion that the out boundary directed to be run should embrace nothing more than the Spanish- town or village, with its appurtenances. The practical difficulty in giving the act this construction, arises from the isolated and distinct position of several parcels of the enumerated classes of lots, in several of the villages mentioned, and particularly in St. Louis. This difficulty induced the belief that the word out-lot might have a signification sufficiently comprehensive to include any vacant ground necessarily comprehended by a single connected survey. The evidence now before the court, showing the position of the commons and common field lots, appertaining to other villages enumerated in the act of 1812, besides St. Louis, is. calculated to create great doubts as to the propriety of a single continuous out boundary. Where there are several detached parcels of common field lots, separated from the village and the commons by tracts of land, belonging either to the United States or to private persons, it is impossible to make a connected survey embracing the village and its appurtenances, without also taking in lands not coming within the description of either out lots or common field lots, and therefore not reserved for the public schools by the act of 1812. It would therefore seem to be more consonant to the spirit of the act, to make separate surveys of each parcel of lots, rather than to extend the meaning of the word out lot beyond that which it obviously bears when used with reference to the private claimants, so as to. authorize a general survey, including these tracts of ground, of irregular shapes and not recognized by the Spanish authorities as appurtenant or belonging to the town or village.
Much has been said in the discussion of all the cases before this court involving the rights of the present defendant in error, in relation to the proper meaning of the term out lot. This term, so indefinite in its general acceptation, must be construed in connexion with the subject matter in the view of.the legislature. Mere contiguity to the village, coupled [266]*266with the fact, that the owner of the lot is an inhabitant of the village, will not alone constitute an out lot within the meaning of the act. These two circumstances might be predicated of any tract of land in the vcinity of the town or village, although cultivated merely as afarm and not subject to the control of the village authorities.
Whywere the common field lots regarded as a part of the village or as “belonging to” the village? They did not belong to the .inhabitants as a corporation, or to the mass of the villagers, as the commons did, but were owned by individuals; yet they were subject to the regulations of the village authorities, and this circumstance determined their character as out lots of the village. Officers were appointed, called Syndics, whose duty it was to see that the fence, which protected these lots from the incursions of the animals, should be properly kept in repair, and that each owner should do his share in this work. So I apprehend that if there were other out lots properly belonging to or rather appurtenant to the village, these lots fell within the control of these village authorities, to he exercised according to the laws and usages prevailing under the government of Spain in this country. This authority may not have been exercised over the out lots to the same extent or for the same purposes, that induced its exercise over the common field lots, but the fact, that the out lots fell within the same jurisdiction as the village lots themselves, was sufficient to indicate their character as appurtenant to the village.
It will appear by reference to the confirmations of Mr. Bates, whilst Recorder, that he uses the term out lots when referring to St. Louis, as mostly, if not entirely synonymous with common field lots. But there may have been other lots which would fall within the designation, as there undoubtedly were in some of the other villages enumerated in the act. This would be a question of fact for a jury to be determined under instructions from the court, explanatory of the characteristics of an out lot.
McBride, Judge.
I can see no objection to receiving the survey made by the Surveyor General of the outer boundary line of St. Louis, under the instruction of the land department of the United States, as prima facie evidence of where that line should run. If a survey had been made in this case, by the county surveyor or any other individual under an order of the Circuit Court, it would be entitled to no greater verity. In each case, either party feeling aggrieved by the line run, would have a right to show, if such was really the case, that the surveyor had committed an error. Tim [267]*267fact that the Surveyor General is an officer appointed by the General Government and acting at all times under the solemnity of an oath and the instructions of the Government, should raise in the absence of any evidence impeaching the correctness of his official action, a presumption of correctness and impartiality, in the discharge of any duty confided to him by the government. In according this degree of credit to a survey made by him for the purpose of setting apart lands donated by the General Government for the purposes of education from the public domain, I do not see that any principle is violated or the rights of parties in any wise compromitted.
I therefore concur on this point with Judge Napton.