Holmes, Judge,
delivered the opinion of the court.
The defendants were in the actual possession of the land in controversy, and gave evidence of a possession of long standing, under a claim of title. There was no evidence that the plaintiffs, or those under whom they claimed, ever had been in the actual possession of the land sued for; they depended solely upon a right to the possession resulting from superior title.
At the close of the evidence, the plaintiffs asked the court to instruct the jury (among other things), “that the acts of Congress of the 13th of June, 1812, and the 27th of January, 1831, confirmed to the inhabitants of the town of St. Charles and vested in them the legal title to their commons as claimed by them and spread upon the records of the Government, and that the survey of the said commons made and certified prior to the 10th day of March, 1804, by the proper officer, is prima facie evidence of the true location, extent and boundary of said commons”; which instruction the court refused. One of the instructions, given at the instance of the defendants, declared that “ although the jury may find from the evidence that Evans’ survey of lots Nos. 14 and 20 of block 4, as claimed by plaintiffs, runs into and interferes with approved U. S. survey No. 164, given in evidence by defendants, yet unless plaintiffs have shown title to the interference now in controversy they cannot recover in this action.”
These instructions raise the question whether, upon the evidence before the jury,Aie plaintiffs had shown any title to the land in controversy.' The only Evidence of a title to commons in the Town of St. Charles, under whom the plaintiffs claimed, that appears in this record as a basis for the instructions which were asked by the plaintiffs, was the plat [503]*503and certificate of survey of the-commons of the town of St. Charles by Antoine Soulard, the Spanish surveyor, dated March 2,1804 ; and the purport of that instruction for the plaintiffs must be taken to be, that said survey was not only evidence of “ the true location, extent and boundary of said commons,” but also of the fact that a right, title and claim to commons with that definite extent and boundary had existed in the Town of St. Charles prior to the 20th day of December, 1803, on which the act of Congress of the.l3th of June, 1812, operated as a grant of title. It has been decided that the act of Congress and an approved official survey by authority of the United States were equivalent to a patent of the tract of land so surveyed as commons. (LeBois v. Brammell, 4 How., U. S. 449.) But no such effect can be given to the survey of Soulard, made before the act was passed, even if it could be considered as having been made by Spanish authority before the change of government. As such, it could only be used as evidence to prove the fact, that prior to the 20th day of December, 1803, a right, title and claim to commons had existed in the Town of St. Charles with the exteift and boundary therein designated, on which the act of Congress could operate as a grant of title. As a survey merely, it speaks from the date .of its completion. The act of Congress did not purport nor intend to confirm a claim to commons which existed only on the 2d day of March, 1804, but only such commons as existed in fact prior to the 20th day of December, 1803.
This survey and certificate were admitted in evidence without objection, and we have only to consider the effect of it as evidence. The certificate of Soulard cannot be allowed to spqak as a deposition of a witness as to extraneous matters recited in it; nor, if it could, does it contain any statements of fact from which a jury would be warranted in inferring that a right, title and claim to commons had existed in fact prior to the 20th day of December, 1803, and with the exter^j and boundary mentioned in the plat and certificate. It certifies only that a tract of land was surveyed and bounded, in [504]*504presence of the syndic and inhabitants of St. Charles, as represented in the plat, according to their petition therefor, dated Jan. 18,1801 (the nature of which is not stated), and the decree of the Lieut. Governor by which he was “ ordered to put them in possession of a sufficient quantity of land to serve them as common,” which survey being completed now on the 2d day of March, 1804, shows a tract containing 14,000 arpens of land with the boundaries described; and it isfurther said that the survey had been made in conformity with the decree of the late Lieut. Governor dated the 26th of February, 1801, and that the whole had been laid down from the field notes of his deputy dated the 27th of February, 1804. The inference to be drawn from all this is, that no definite tract of land had existed as a common, or been claimed or possessed by the inhabitants of the town, until this survey was completed ; though it would appear that he had previously obtained authority to survey, designate and put them in possession of a sufficient quantity of land to serve them as a common.
In the absence of any official survey of commons by authority of the United States, the only way i#which a title to commons under the act .of Congress of the 13th of June, 1812, can be shown is by proof of some grant, concession, survey, or actual possession, claim, or user, of some definite tract of land as commons prior to the 20th day of December, 1803. Without such evidence, there can be no title to commons, under that act, where no official survey is shown.
In Chouteau v. Eckert, 2 How. (U. S.) 344, several documents were in evidence tending to show an actual concession, claim, and possession of commons, with the definite extent and boundary, which were afterwards accurately marked by the survey of Soulard, and that the commons of the town had been enclosed by a fence as early as 1798, including the lot in controversy in that case; and the court said, “ the 3hole of the claim is included in the village common, of St. liarles as it existed on the 20th day of December, 1803.” The St. Charles common was indirectly alluded to in Caron[505]*505delet v. St. Louis (1 Black. 189), in which it was remarked that this common “had been accurately and carefully surveyed and the boundaries marked by Soulard, the Spanish surveyor” (2 How. 350), and that “no question of boundary was involved in the controversy” in that case (Chouteau v. Eckert). This was true; but the observation must be understood, of course, as made in reference to the actual proofs shown in that case, and it will not warrant the assumption that the court intended to place this survey of Soulard on an equal footing with an official survey by authority of the United States, expressly made as a survey of the commons which was granted by that act.
In the case of Bird v. Montgomery, 6 Mo. 510, documentary evidence of like character was introduced (together with the survey of Soulard) clearly showing an actual claim and concession of commons existing in fact as early-as 1801, with the definite boundaries afterwards designated by the survey. It was insisted by the defendant in that case, “ that the act of 1812 operated to confirm the titles of claimants only when there was a grant from the Spanish Government, or sueh long use and enjoyment of a specific quantity of land as would amount to a grant.” The court held this position to be correct, if the word grant
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Holmes, Judge,
delivered the opinion of the court.
The defendants were in the actual possession of the land in controversy, and gave evidence of a possession of long standing, under a claim of title. There was no evidence that the plaintiffs, or those under whom they claimed, ever had been in the actual possession of the land sued for; they depended solely upon a right to the possession resulting from superior title.
At the close of the evidence, the plaintiffs asked the court to instruct the jury (among other things), “that the acts of Congress of the 13th of June, 1812, and the 27th of January, 1831, confirmed to the inhabitants of the town of St. Charles and vested in them the legal title to their commons as claimed by them and spread upon the records of the Government, and that the survey of the said commons made and certified prior to the 10th day of March, 1804, by the proper officer, is prima facie evidence of the true location, extent and boundary of said commons”; which instruction the court refused. One of the instructions, given at the instance of the defendants, declared that “ although the jury may find from the evidence that Evans’ survey of lots Nos. 14 and 20 of block 4, as claimed by plaintiffs, runs into and interferes with approved U. S. survey No. 164, given in evidence by defendants, yet unless plaintiffs have shown title to the interference now in controversy they cannot recover in this action.”
These instructions raise the question whether, upon the evidence before the jury,Aie plaintiffs had shown any title to the land in controversy.' The only Evidence of a title to commons in the Town of St. Charles, under whom the plaintiffs claimed, that appears in this record as a basis for the instructions which were asked by the plaintiffs, was the plat [503]*503and certificate of survey of the-commons of the town of St. Charles by Antoine Soulard, the Spanish surveyor, dated March 2,1804 ; and the purport of that instruction for the plaintiffs must be taken to be, that said survey was not only evidence of “ the true location, extent and boundary of said commons,” but also of the fact that a right, title and claim to commons with that definite extent and boundary had existed in the Town of St. Charles prior to the 20th day of December, 1803, on which the act of Congress of the.l3th of June, 1812, operated as a grant of title. It has been decided that the act of Congress and an approved official survey by authority of the United States were equivalent to a patent of the tract of land so surveyed as commons. (LeBois v. Brammell, 4 How., U. S. 449.) But no such effect can be given to the survey of Soulard, made before the act was passed, even if it could be considered as having been made by Spanish authority before the change of government. As such, it could only be used as evidence to prove the fact, that prior to the 20th day of December, 1803, a right, title and claim to commons had existed in the Town of St. Charles with the exteift and boundary therein designated, on which the act of Congress could operate as a grant of title. As a survey merely, it speaks from the date .of its completion. The act of Congress did not purport nor intend to confirm a claim to commons which existed only on the 2d day of March, 1804, but only such commons as existed in fact prior to the 20th day of December, 1803.
This survey and certificate were admitted in evidence without objection, and we have only to consider the effect of it as evidence. The certificate of Soulard cannot be allowed to spqak as a deposition of a witness as to extraneous matters recited in it; nor, if it could, does it contain any statements of fact from which a jury would be warranted in inferring that a right, title and claim to commons had existed in fact prior to the 20th day of December, 1803, and with the exter^j and boundary mentioned in the plat and certificate. It certifies only that a tract of land was surveyed and bounded, in [504]*504presence of the syndic and inhabitants of St. Charles, as represented in the plat, according to their petition therefor, dated Jan. 18,1801 (the nature of which is not stated), and the decree of the Lieut. Governor by which he was “ ordered to put them in possession of a sufficient quantity of land to serve them as common,” which survey being completed now on the 2d day of March, 1804, shows a tract containing 14,000 arpens of land with the boundaries described; and it isfurther said that the survey had been made in conformity with the decree of the late Lieut. Governor dated the 26th of February, 1801, and that the whole had been laid down from the field notes of his deputy dated the 27th of February, 1804. The inference to be drawn from all this is, that no definite tract of land had existed as a common, or been claimed or possessed by the inhabitants of the town, until this survey was completed ; though it would appear that he had previously obtained authority to survey, designate and put them in possession of a sufficient quantity of land to serve them as a common.
In the absence of any official survey of commons by authority of the United States, the only way i#which a title to commons under the act .of Congress of the 13th of June, 1812, can be shown is by proof of some grant, concession, survey, or actual possession, claim, or user, of some definite tract of land as commons prior to the 20th day of December, 1803. Without such evidence, there can be no title to commons, under that act, where no official survey is shown.
In Chouteau v. Eckert, 2 How. (U. S.) 344, several documents were in evidence tending to show an actual concession, claim, and possession of commons, with the definite extent and boundary, which were afterwards accurately marked by the survey of Soulard, and that the commons of the town had been enclosed by a fence as early as 1798, including the lot in controversy in that case; and the court said, “ the 3hole of the claim is included in the village common, of St. liarles as it existed on the 20th day of December, 1803.” The St. Charles common was indirectly alluded to in Caron[505]*505delet v. St. Louis (1 Black. 189), in which it was remarked that this common “had been accurately and carefully surveyed and the boundaries marked by Soulard, the Spanish surveyor” (2 How. 350), and that “no question of boundary was involved in the controversy” in that case (Chouteau v. Eckert). This was true; but the observation must be understood, of course, as made in reference to the actual proofs shown in that case, and it will not warrant the assumption that the court intended to place this survey of Soulard on an equal footing with an official survey by authority of the United States, expressly made as a survey of the commons which was granted by that act.
In the case of Bird v. Montgomery, 6 Mo. 510, documentary evidence of like character was introduced (together with the survey of Soulard) clearly showing an actual claim and concession of commons existing in fact as early-as 1801, with the definite boundaries afterwards designated by the survey. It was insisted by the defendant in that case, “ that the act of 1812 operated to confirm the titles of claimants only when there was a grant from the Spanish Government, or sueh long use and enjoyment of a specific quantity of land as would amount to a grant.” The court held this position to be correct, if the word grant were understood to include inchoate titles and concessions, and all such rights, titles and claims as were the subjects of the act of Congress; and it was added, that “ in this case there was not only a claim to an indefinite quantity of land as far back as 1796, and which was recognized by the proper authorities of that day, but a more distinct and definite claim set up in 1801, and express-, ly conceded by the proper officer so far as he had authority to make such a concession.” The documents that appeared in evidence were considered as having fixed and established the claim to commons with definite boundaries as a right, title and claim existing prior to 1803, as it was also actually surveyed by Soulard before the transfer of Upper Louisianr in 1804; and as such claim so proved, it was held to have been confirmed by the act. It is pelear that this conclusion [506]*506was based upon the actual proof of an existing commons prior to 1803, and not merely upon the survey of Soulard dated in 1804. It was further said, that the evidence offered was sufficient to show an actual user of commons of an indefinite extent as far back as 1776, and that “in 1801 the claim and the user were reduced to certainty by a petition containing a special description by metes and bounds, and a consequent survey in 1804.” But it is not to be inferred that the survey alone was considered as being any evidence of such user or claim prior to the 20th day of December, 1803.
The conclusion must be that there was no evidence before the jury, in this case, of any title whatever to commons in the Town of St. Charles at the date of the plaintiff’s lease. It follows that there was no error in the ruling of the court upon the instructions in question; and, indeed, that the only instruction that could properly have been given, would have been to the effect that the jury should find for the defendants.
It was not claimed on the part of the plaintiffs that the survey and plat of the out-boundary line of the town of St. Charles, under the act of 13th June, 1812, was a survey of the commons, or any evidence of the location, extent and boundary of the commons ; though some of the defendants’ instructions affected to treat it as such, and as a survey of the private lots marked on the plat. It can hardly be necessary to say, that this was no survey of any tract of land for the land as commons, or for an individual as a private lot. (Kissell v. Schools, 16 Mo. 587 ; Glasgow v. Hortiz, 1 Black. 595.)
There is no occasion that we should proceed to review in detail the numerous instructions that were given or refused on either side. In reference to those which related to the defendants’ title by the certificate of the U. S. Recorder of land titles, on proof made before Recorder Hunt under the act of 26th of May, 1824, and a survey thereon, it may be observed, that until the plaintiffs can show some title in themselves to the land in controversy, they will not be in a position to question or dispute the prima facie title shown by those documents, however erroneous that survey may have [507]*507been; upon which we are not now called upon to express any opinion. It is, at least, conclusive upon the Government while it stands as a survey, and upon all mere intruders and strangers without any title to the same land. (McGill v. Somers, 15 Mo. 80.)
Judgment affirmed.
The other judges concur.