Napton, J.
delivered the opinion of the court.
This was an action of ejectment to recover a lot in the city of St. Louis, bounded east by Second street, south by Cherry street, west by Third street, and north by a lot or small tract of five or six acres, granted to J. Glamorgan, and surveyed in 1803.
The plaintiffs below recovered a judgment for a portion of said lot.
The title of the plaintiffs was derived from the act of Congress of [74]*74June 13, 1812, making further provision for settling the claims to land in the territory of Missouri.
It appeared that in accordance with the act of the Territorial Legislature of 18th June, 1808, authorizing the incorporations of towns in certain cases the court of common pleas in the district of St. Louis, made an order dated 6th November, 1809, incorporating the town of St. Louis, and the lot sued for is within the corparate limits so defined. It was also embraced within the out boundary, made in pursuance of the act of 13th June, 1812, and the act of 26th May, 1824, purporting to be the out boundary line of St. Louis, so as to embrace the cut-lots? common field lots in the common field of St. Louis, and the commons thereto belonging. In pursuance of instructions from the Commissioner of the General Land Oifice, dated 15th Jan’y, 1839, directing the surveyor to designate and set apart for the support of schools in the town of St. Louis, the vacant land lying between the survey of Gla-morgan and Cherry street, the lot in dispute was so designated and set apart as directed. It appeared that the lots so designated and set apart had not been reserved for military purposes, and that they did not exceed one-twentieth part of the whole lands included in said survey.
The defendant offered as an outstanding title, a New Madrid location, made by the legal representatives of Henry Peyroux, which embraced the lot in controversy, as well as several lots south of Cherry street, and Spanish claims north of the town.
The defendant also, with a view to show that the lot in controversy was not within the limits of the Spanish town as it existed in 1803, offered various documents in evidence: 1. Glamorgan’s claim and concession, and the survey of it by Soulard in 1803. This survey describes the claim as lying four arpens north of St. Louis, and bounded on the south by vacant lands adjoining the town. 2, An ancient plat derived from the former government, containing surveys of sundry grants lying north of Clamorgan, in which are laid down the position of the half moon and the bastion, and the lots south of Cherry street are described as the first lots of the town. 3, 4, 5, & 6. A plat of the town made by Auguste Chouteau in 1780 ; the petition of Pierre Chou-teau and others, for the confirmation of the whole town in 1808, and of the proceedings of the Board thereon, recognizing said plat. 7. The concession to Chouteau in 1799, of 133 arpents, lying within the out-boundary line, as offered in evidence by plaintiff, and a plat of Chou-teau’s mill tract, containing 1300 arpents, and other tracts lying all within said out-boundary line.
The testimony of several surveyors and others, familiar with the old [75]*75town or-village of St. Louis, was introduced by the defendant, with a view to show the size and situation of St. Louis, at the time of the change of government.
The strip of land on which is situated the lot now claimed, lay between Glamorgan’s grant and the first tier of lots as laid down in the ancient map of the town. In 1799, one Beauvois petitioned the Lieut* Governor for a part of this strip, describing the portion he desired as “situate to the north of the town, on the hill west of Main street, and bounded south by a cross street that separates it from the last lot of the town ; on the north by the land granted to Clamorgán, &c., which space may contain about the ordinary lot of 120 feet-front, by the accustomed depth of 300 feet,” &e. The concession was made in November, 1803. East of Main street another portion of the strip was granted to Madame La Chaise. This location of- Madame La Chaise was not surveyed, the surveyor stating that he did not know whether a street ought to be traced out in that portion of the town, and if so, on whose land the street ought to be traced, and therefore he had put the widow La Chaise in possession of the land lying between Clamorgan and Lacompte. The location is described -in the Recorder’s report as a lot in the town of St. Louis, and was confirmed as such, possession having been proven prior to 1803.
These same witnesses gave their opinion also, that the term “out-lot,” used in the act of Congress 13th Jtinej 1812, so far as it applies to St. Louis, means nothing other than common field lots ; that the term is not found among the land records in St. Louis.
Some testimony was given in relation to the out boundary line as given in evidence ; some of the witnesses being of the opinion that it did not embrace enough, as it loft out the Barriere des Noyes and Grand Prairie common fields, which they supposed to be common fields belonging or appendant to St. Louis ; others declaring that this out-boundary line might have been so run as to have embraced everything enumerated in the act of Congress, and have still left out the lot sued for*
These witnesses were or had been public surveyors.
The plaintiffs asked and the court gave two instructions to the jury, to wit:
“ 1. The official survey given in evidence by the plaintiff, purporting to be a survey made in pursuance of the act of Congress of 13th June 1812, is prima facie evidence of the out-boundaries of the town of St* Louis, surveyed so as to include the out lots, common field lots and commons thereto belonging.
[76]*762.If the jury find from the evidence that the lot or parcel of land, designated by the survey numbered 3198, given in evidence in this case, is within the out-boundaries of the town of St. Louis, surveyed so as to include the out-lots, common field lots, and commons thereto belonging, and that before the commencement of this s.uit, the Surveyor of Public Lands, forthe States of Illinois and Missouri, under the instructions of the Commissioner of the General Land Office, did survey, designate, and set apart to the said town, the said lot for the support of schools therein, then the plaintiffs have shown a sufficient title to said lot.”
The defendant asked the following instructions, which were refused :
{£L If the jury believe from the evidence, that the land sued for in this action was not, nor any part thereof, a town lot, village lot, or common field lot, at the time the American Government took possession of the Upper Louisiana, they are bound to find for the defendant.
2. If the jury believe from the evidence that the land sued for in this action was not, nor any part thereof, either a town lot, village lot, out-lot, or common field lot, on the 20th Dec. 1803, they are bound to find for the defendant.
3. If the jury believe from the evidence, that the land in question in this suit, was beyond the limits of the town of St. Louis, as' the same existed under the French and Spanish Governments, and that on the 13th June, 1812, it was not in whole nor in part a portion of the land inhabited, used or laid out for the purposes of said town, or its inhabitants, they are bound to find for the defendant.
4. If the jury believe from the evidence, that the land in question was, during the French and Spanish Governments, outside of the town of St. Louis, and was, down to the 13th June, 1812, an unappropriated and vacant space, beyond the regular limits of said town, they are bound to find for the defendant.
5. The act of Congress of the 13th June, 1812, entitled “an act making further provision for settling the claims to land in the territory of Missouri,” does not reserve for the use of schools, in the towns and villages therein mentioned, any land which bad not been made a town or village lot, out-lot, or common field lot, previously, by the proper authority.
6. If the jury believe from the evidence, that the survey of the out-boundary line of the town of St. Louis, under the first section of an act of June 13th, 1812, could have been so run as to include the out-lots, common field lots, and commons thereto belonging, and exclude [77]*77the land in dispute in this action, they are bound to find for the defendant.
7. That the location under the New Madrid certificate, so called, in favor of Henry Peyroux, given in evidence in this case, is a better title to the land in question than that shown by,the plaintiff, if the jury believe from the evidence that the said land is embraced in such location, and that it was not on the 13th June, 1812, or before, either a town or village lot, out-lot, or common field lot of St. Louis.
8. If the jury believe from the evidence that the land in question before, and on the 13th June, 1812, was a vacant space not embraced within the streets of St. Louis, nor included among the regular lots of the village, and that it had never been.a common field lot, then the said act of Congress did not reserve it for the support of. schools.
9. If the jury believe from the evidence, that the out-boundary line of the survey of St. Louis, under the act of Congress of the 13th June, 1812, given in evidence by the plaintiff, does, not include all the common field lots belonging to St. Louis, then the. same line has been illegally run, and is not evidence of title.
10. That the land in question was not reserved for the use of schools by the act ¡of Congress of 13th June, 1812, although a vacant space lying within the limits of St. Louis, as incorporated by the court of common pleas, unless it were a town or village lot, out-lot, or common field lot, previously designated as such.
11. A mere vacant, unappropriated space of ground, outside of the village of St. Louis, as such village was on the 13th June, 1812, is not, of course, an out-lot within the meaning of that act, although lying within the limits of the town of St. Louis, as incorporated by the court of common pleas, by the order given in evidence, and although not a common field lot.
12. The boundary line of St. Louis, of the lots and commons thereof, given in evidence by the plaintiff, has not been run according to law, and therefore no evidence of title,
13. That the town or village lots, out-lots, or common field lots, reserved for the use of schools, by the act of 13th June 1812, and relinquished by the act of 29th January, 1831, to the inhabitants of the several villages therein mentioned, was a reservation to the use of the villages, as they stood under the French and Spanish Governments, and the act of the Legislature incorporating the plaintiffs, to be elected by the inhabitants of the city of St. Louis, as it stood incorporated at the passage of said act, is ineffectual to divest the trust fund from the ancient inhabitants of the village of St. Louis, to the modern city of St [78]*78Louis; and the authority in the act authorizing the election of the board of dirictors, by others than the grantees, is null and void, and the plaintiffs have no legal existence, and cannot maintain this action.
14. The reservation by the acts of 1812 and 1831 aforesaid, to the use of the inhabitants of the villages named in the said act, was a reservation to the use of the inhabitants of the villages as they stood in 1812; and the act of the Legislature of Missouri, incorporating the plaintiffs as trustees for the use of the inhabitants of the modern city of St. Louis, is ineffectual to divert the trust to the use of such inhabitants, and the authority in said act to elect the board of directors of public schools, &c., for the modern city of St. Louis, is null and void, as diverting the objects of the grant, and the plaintiffs have no legal existence, and cannot maintain this action.
15. That the plaintiffs are not entitled to recover in this action, because the acts of Congress of 13th June, 1812, and January 1831, and the act of the Legislature of Missouri, incorporating the plaintiffs, have conferred no title on them, and they are not entitled to recover.
16. If the jury find from the evidence that the instructions from the General Land Office, under date of 15th January, 1839, accompanied with a diagram, B, referred to in said instructions, and designated on said diagram by the colors green and yellow, to survey and set apart the school lands, does not embrace the land in question, they must find for the defendant.”
The merits of this ease depend upon the construction of the first and second sections of the act of 13th June, 1812, which are as follows:
§ 1. Be it enacted, See., That the rights, titles, and claims to town or village lots, out lots, common field lots, and commons in, adjoining and belonging to, the several towns or villages of Portage des Sioux, St. Charles, iiL Louis, St. Ferdinand, Villa a Robert, Carondelet, Ste. Genevieve, New Madrid, New Bourbon, Little Prairie and Arkansas, in the Territory of Missouri, which lots have been inhabited, cultivated or possessed prior to the twentieth day of December, one thousand eight hunched and three, shall be, and the same are hereby, confirmed, to the inhabitants of the respective towns or villages aforesaid, according to their several right or rights in common thereto : Provided, That nothing herein contained shall be construed to affect the rights of any persons claiming the same lands, or any part thereof, whose claims have been confirmed by the board of commissioners for adjusting and settling claims to land in the said territory. And it shall be the duty of the principal deputy surveyor for the said territory, as soon as [79]*79may be, to survey, or cause to be surveyed and marked, (where the same has not already been done according to law,) the out-boundary lines of the said several towns or villages, so as to include the out-lots, common held lots, and commons thereto respectively belonging. And he shall make out plats af the surveys, which he shall transmit to the surveyor general, who shall forward copies of the said plats to the Com» missionci of the General Land Office, and to the Recorder of Land Titles: the expense of surveying the said out-boundary lines shall be paid by the United States, out of any moneys appropriated for surveying the public lands: Provided, That the whole expense shall not exceed three dollars for every mile that shall be actually surveyed and marked.
§ 2. That all town or village lots, out-lots, or common field lots, included in such surveys, which are 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, shall be, and the same are hereby reserved for the support of schools in the respective towns or villages aforesaid ; Provided, That the whole quantity of land contained in the lots reserved for the support of schools in any one town or village, shall not exceed one-twentieth part of the whole lands included in the general survey of such town or village.
For the purpose of enabling the Surveyor General to distinguish the lots claimed by individuals from those reserved under the 2d section above recited, the act of 26th of May, 1824, was passed. It enacts :
<c§ 1. That it shall be the duty of the individual owners or claimants of town or village lots, out-lots and common field lots, in, adjoining or belonging to the several towns or villages of Portage des Sioux, St. Charles, St. Louis, St. Ferdinand, Villa a Robert, Carondelet, Ste. Genevieve, New Madrid, New Bourbon, Little Prairie and Arkansas, whose lot.: were confirmed by the act of Congress (13th June, 1812,) on the ground of inhabitation, cultivation or possession, prior to the 20th Dec. 1803, to proceed within eighteen months after the passage of this act, to designate their said lots by proving before the Recorder of Land Titles, the fact of such inhabitation, cultivation or possession, and the boundaries and extent of such claim, so as to enable the Surveyor General to distinguish the private from the vacant lots appertaining to the said towns and villages.”
“§ 2. That immediately after the expiration of said term allowed for proving such facts, (26th Nov. 1825,) it shall be the duty of the Surveyor General, within whose district such lots lie, to proceed under [80]*80the instructions of the commissioner of the General Land Office, to survey, designate and set apart the said towns and villages respectively, so many of the said town or village lots, out lots and common-field lots, for the support of schools, in the said towns and villages respectively, as the President of the United States shall not before that time (26th November, 1825,) have reserved for military purposes not exced-iug one-twentieth part of the whole lands included in the general survey of such town or village, according to the provisions of the second section of the above mentioned act of Congress.”
This section also directs a survey of the commons, and provides, “that lots relinquished to the United States on account of damage done them by earthquakes, and in lieu of which, lands have been located elsewhere, shall neither be so designated, nor set apart, nor taken into the estimate of the quantity to which any town or village is entiled.”
§ 3. This section requires the Recorder to issue a certificate of confirmation, and “that as soon as the said time shall have 'expired, he shall furnish the Surveyor General with a list of the lots so proved to have been inhabited, cultivated or possessed, to serve as his guide in distinguishing them from the vacant lots to be set apart as above described, and shall transmit a copy of said list to the commissioner of the General Land Office.
By the second, section of the act of 27th January, 1831, the United States relinquished all their rights, title, &c., to the town and village lots, out-lots, and common field lots, in the State of Missouri, reserved for the support of schools in the respective towns and villages, by the second section of the act of 13th June, 1812.
The question is, what lands are reserved by the 2nd section of the act of 13th June, 1812 ? On the one side, it is contended that all the lands included within the general survey directed by the first section, which are not disposed of to private claimants, by said section, are reserved by the second, partly for military purposes, partly for schools as the subsequent legislation of Congress, or the action of the executive, might determine. On the other hand, the plaintiff in error insists, on a more rigid construction of the language of the act; he maintains that the same language being employed to designate the subject matter of legislation in both sections, the same construction must be given to the terms employed in one section that is given to the same terms in the other. Hence, it is insisted, that as the first section confirms to individuals village lots, out-lots, common field lots, only as they existed in 1803, the second section must be limited to the same subject matter, [81]*81to wit: to lots which had existence under the former government. This construction, it is said, is not only warranted by the letter of the law, but is consistent with the general scope of Congressional legislation on this subject: the object of all the laws in relation to the settlement of land claims in Missouri, oeing uniformly confined to such as originated under the former government. This section, therefore, if it-applies to anything that was not a lot, made so by grant, or user under the former government, must be a solitary exception to the general course of legislation. The apparently careful use of the word “lots,” in both the first and second sections, and the repetition of the same terms in the supplementary acts of 1824 and 1831 is invoked as a circumstance confirmatory of this interpretation. Hence, the second section speaks of the “quantity of land contained in the lots reserved for the use of schools,75 See.; and the aet of 1824 directs the Surveyor General to set apart “so many of the said vacant Uwn or village lots, out lots and common field lots,55 as the President shall not have reserved, for military purposes.
I cannot concur in this rigid interpretation of this act, but am led to a diffei’ent conclusion, from a view of what seems to be the general scope and design of the law, as well as from the distinct and separate objects proposed by the two sections under consideration; and this -conclusion, as I conceive, is not only warranted by its language, but is better supported by the history of its origin and purposes, as disclosed in the State papers, portions of which were read at the trial.
Congress designed to dispose of the whole subject matter about which they were legislating. When, therefore, they directed an out boundary line to be run, they obviously intended that survey to embrace all the particulars previously enumerated in the section, and it was as clearly designed that these particulars, to wit: the village lots, out-lots, common field lots, and commons, should comprehend every - thing within that line. Of what avail was this out-boundary line, unless everything within it was disposed of?
It will be observed that the first section had disposed of all the lots that had been “inhabited, cultivated, or possessed, prior to 1803;” that is, the whole of the Spanish village,, or town proper. Then an out-boundary line was directed, and the second section disposes of all the lots, out lots, &c., within this out boundary, but without limiting them to such as had been “occupied,” &c., under the former government. Now, if it was the intention of Congress only to reserve the lots, out-lots, &c., which were enumerated in the first section, and acquired their character as such from occupancy or survey under the Spanish [82]*82government, why direct that an out-boundry line shall be run? An enumeration of the particular classes of land, as it was made in the first section, would have answered every purpose, and no “ useless investigation1,” as Mr. Riddick terms it, is saved by directing this line. The same questions arise under the second section, which did under the first; the same proof is necessary, and so far as the General Government, and the schools were concerned, they could get nothing by proof, except where such lots had been abandoned by their proprietors.
Itis true that the second section embraces nothing which is not conveyed by the same terms in the first, except that the inhabitation, possession or cultivation required by the first section, is not required by the second; but. these terms, if taken in their ordinary acceptation, are large enough to embrace every thing within the out-boundary line directed to be run. Hence, the word out-lut is interpreted as synonymous with common field lot, by those who would limit the operation of the second section to such lots as were recognized by the Spanish authorities. But the limitation of these words in the first section, is not to be found in the second.
But the motive and design of these two sections of the act of 1812, are totally different. The first section in conformity with the title of the act, was designed for the settlement of claims, rights and titles} originating under the former government; it was the fulfilment of an obligation imposed upon this Government, by their treaty with France; and its operation is confined to this object solely. The second section obviously grows out of different motives, and has in view different purposes. It was amere gratuity so far as the donation for schools iseon-cerned, and the resei’vation, in other respects, appears designed for the convenience of the Government. There is no reason why Congress, in making the reservation in the second section, should have been limited to Spanish claims or to lots which were recognized by the former government, as appurtenant to the village.
Whilst this intent of the law makers is to be inferred from the law itself, the letters of Mr. Riddick and Penrose, contained in the State Papers of that year, (Duff Green’s ED. v. II. p. 377,) are .calculated to strenghten this construction of the act.
In Mr. Penrose’s letter to Mr. Gallatin he says “ claims for field or out-lots, as they are termed, should be confirmed, recorded or not recorded. All these tracts have been cultivated and possessed from 15 to 50 years. All this class are, the Grand'and Little Prairie and Barriere des Noyes St. Louis' There may be a few vacancies per-hapsi.in these fields, grant them in such case to the inhabitants for [83]*83public schools.” Again he says : “ It would probably be best to confirm the town, generally to the inhabitants, and if there be any vacant lots, grant them for public schools.” Mr. Penrose evidently considers out-lots, and common field lots as synonymous.
Mr. Riddick’s letter was addressed to the chairman of the committee on public lands, and is dated March 26th, 1812, “Class 49th,” he says: “Villages, commons, common field, and lands adjacent, given to the inhabitants individually for cultivation, possessed prior to 20th December, 1803.” On this class he remarks : “The 49th Class will comprise nearly one-fourth in number of all the claims in the Territory of Louisiana, and if confirmed at once, by the outer lines of a survey to be made by the principal deputy, would give general satisfaction, and save the United States a deal of useless investigation into subjects that are merely matters of individual dispute ; the United States can claim no right over the same, except a few solitary village lots and inconsiderable vacant spots of little value, which might be given to the inhabitants for the use of schools.”
These letters show that Congress was in possession of full information on the subject 5 and the act of 13th June, 18.12, seems to be framed with great caution. Notwithstanding these vacancies within the out-boundary line suggested by Mr. Riddick, were represented as inconsiderable vacant spots of little value, they were not granted en masse to the schools, but were first subject to be appropriated by the President to military purposes, and after that object was accomplished, they were reserved for the use of schools ; providing, however, that in no event should the portion appropriated to this latter purpose, exceed the one-twentieth of the whole land embraced by the out boundary.
It would be a little remarkable if Congress had exhibited all this circumspection in reserving for military purposes, and for the «promotion of education, abandoned lots in the village, or vacancies in the common fields.
The ninth and twelfth instructions, asked by the plaintiff in error, call in question this legality of the survey given in evidence on the trial, purporting to be the out-boundary line of the town of St. Louis, as it stood incorporated on the 13th June, 1812, “including the out-lots, common field lots of the common field of St. .Louis, and the common thereto belonging,” and purporting to be made in pursuance of the first section of the act of 13th June, 1812.
Several objections are made to this.survey, founded partly on the testimony given at the trial, consisting of the opinions of practical surveyors, and facts detailed by them, and partly upon matters appearing [84]*84on the face of the survey. One objection is, that the survey does not comprehend the Big Prairie, and Barriorre des Noyes common fields; another is, that the survey comprehends too much, and might have been made pursuant to law, leaving out several strips of ground now taken in. The first objection is certainly not available. If the United States and the corporation, (plaintiff below) are agreed upon this point, I am unable to see upon what principle the defendant should be permited to object that the survey does not embrace all the land which it should have embraced. The survey having been made by an officer duly authorized by law, was therefore prima facia evidence of what it purported to be, and the defendant if permitted to contest it on this ground, would be occupying the position of a mere trespasser. The principle sanctioned by this court in Hunter vs. Hemphill, would, I think, preclude a party so situated from taking such an objection.
But the second objection rests on different grounds. If the survey embraced more than the act required, the rights of third persons originating subsequently to 1812, but before the actual making of the survey, might be materially affected. The out-boundary line directed by the act, was to embrace nothing except town or village lots, out-lots, common field lots, and commons, in, adjoining and belonging to the town of St. Louis, at the passage of the act. If it did, the defendant below .had a right to show it; whether he is a trespasser or not depends on the legality of the survey. If the survey did not rightfully embrace the land in dispute, it was public land, and liable to sale and location; if it did, the land was not so liable, and the defendant’s New Madrid location was a nullity. Whether the survey was inaccurate in this respect or not, is a mixed question of law and fact; so far as the question depends on the construction of the statute itself, it is a question of law ; whether the lot in controversy was within the limits directed by the act, is a question of fact for the jury.
The first instruction given by the court of common pleas, at the instance of ,the plaintiff below, was a correct exposition of the law on this point. By the second instruction given, the jury were left to determine whether the lot in controversy was within the out-boundary of the town of St. Louis, surveyed so as to include the out lots, common field lots, and commons thereto belonging. This instruction either assumes that the survey of the out-boundaries given in evidence, was conclusive upon the defendant, or leaves its legality to be determined by the jury as a question of law. As the court rejected all instructions impeaching the validity of the survey, I presume the second instruction was intended to assert that principle, and therefore virtually directed [85]*85(.he jury to find for ihe plaintiff, if the lot in controversy was within the surveyed out boundary which was in evidence.
Though I am not prepared with the evidence now before the court to say that this instruction was absolutely and abstractly correct, that is, that there may not be valid objections to this survey, yet so far as the present defendant is concerned, he cannot complain, if any survey made in conformity to the law, must have embraced the lot proved to have been occupied by him.
As before observed, I reject that interpretation of the law, which requires occupancy or cultivation prior to Dec. 1803, as essential proof to establish a town or out-lot of the town. What then was the condition of the strip of ground, numbered on the survey lot 3198, in 1812? It was surrounded on three sides by streets. On the east was a lot belonging to Madam Luchaire, and confirmed, to her by the Recorder in 1815, as a village lot. On the west was the land of Beauvois, which in 1799 was described as “situate to the north of the town, on the hill west of Main street, and bounded south by a cross street, that separates it from the last lot of the town, on the north by the land of Glamorgan, &c., which space may contain about the ordinary lot of 120 feet front by tne accustomed depth of 300 feet.” This would seem to be a town lot, at least in contemplation, as early as 1799. The vacant space between these lots, must surely be held a town lot, within the meaning of the second section of the act of 1812.
The judgment of the court of common pleas should, in my opinion, be affirmed. ’ '