Missouri's Katy Trail and the Court of Federal Claims

The Supreme Court of the United States had settled the matter. The National Trails System Act as amended in 1983 (Public Law 98-11, Section 208, 97 Stat 42), allowing the interim use of railroad corridors for recreational purposes, was a valid exercise of Congressional authority (Preseault v. ICC, U.S. Reports, Vol. 494, pg 1). The application of the legislation, however, might block or delay the recovery of property encumbered by railroad easements that would have been extinguished upon abandonment of the railroad corridor. This denial of recovery could constitute a taking of property rights without compensation. If a taking or denial of property rights did occur as a result of federal legislation, the United States would be liable for compensation under the Fifth Amendment to the United States Constitution.

Although the Supreme Court of the United States determined the constitutionality of the legislation, it did not determine whether or not its application created a liability for the United States to provide compensation. The Court recognized that not all rail-to-trail conversions would result in a taking of property rights, since the nature of the interest originally acquired by the railroad would be the determining factor. Railroad corridors were generally acquired in numerous parcels, so each parcel would have to be evaluated on its own merits and a claim for compensation pursued through the United States Court of Federal Claims.

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department ... (28 USC 1491(a)(1)).

Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues (28 USC 2501).

A claim for compensation had to be filed in a timely manner after the claim first accrued, but it would take some court examination before it could be determined exactly when a claim first accrues. The case of Caldwell v. United States was the first to consider at what point in the railbanking process it is appropriate to initiate a claim for compensation.

When a railroad decides to abandon any part of its railroad line, it files an application with the Surface Transportation Board (STB), formerly the Interstate Commerce Commission. Standard abandonment proceedings are governed by the provisions of 49 USC 10903 (49 CFR 1152). If there has been no local traffic over the railroad line for at least two years and any overhead traffic on the line can be rerouted over other lines, the railroad may apply for an exemption from the standard abandonment proceedings under the provisions of 49 USC 10502 (49 CFR 1152.50(b)).

If a state, political subdivision or qualified private organization is interested in using the railroad corridor for interim trail use in accordance with the amended National Trails System Act, it must make a filing to that effect with the Surface Transportation Board. Under standard abandonment proceedings the filing is in the form of a “comment” or “request.” For an exemption proceeding a “petition” is required (49 CFR 1152.29).

If the railroad agrees to negotiate an interim trail use/railbanking agreement with the trail sponsor, then the STB will issue a “Certificate of Interim Trail Use or Abandonment” (CITU), for standard abandonment proceedings, or a “Notice of Interim Trail Use or Abandonment” (NITU), for exemption proceedings. If a railroad is unwilling to enter into an interim trail use agreement, it cannot be forced to do so (National Wildlife Federation v ICC, 850 F.2d 694 (1988)).

The issuance of a CITU or a NITU allows the railroad to discontinue service, cancel any applicable tariffs and salvage track and material consistent with interim trail use and railbanking. The railroad and trail sponsor then have a set period of time to negotiate an interim trail use agreement. If agreement cannot be reached in this set amount of time, an extension may be requested. Once an agreement is reached, the STB is notified. The CITU or NITU remains in effect indefinitely as long as the trail sponsor maintains its obligations under the National Trails System Act. If negotiations fail and no interim trail use agreement results, the railroad is permitted to fully abandon its line.

The Railway Company in the Caldwell case filed a notice of exemption to abandon its line on July 5, 1994. A trail sponsor came forward and a Notice of Interim Trail Use or Abandonment (NITU) was issued by the Interstate Commerce Commission (ICC) on August 31, 1994. Several extensions were granted before an agreement was reached and a notice to the ICC was filed on July 5, 1996. The actual transfer was executed on October 9, 1996 and filed for record on October 11, 1996. Plaintiffs filed their claim for compensation in the United States Court of Federal Claims on October 7, 2002 (57 Fed. Cl. 193 (2003)). That court determined the claim to be barred as untimely, not having been filed within six years of the date of the Trail Use Agreement. Upon appeal, the United States Court of Appeals, Federal Circuit, affirmed the decision of the Court of Claims, but for a different reason (391 F.3d 1226 (2004)). The Appeals Court made the following statements:

The taking, if any, when a railroad right-of-way is converted to interim trail use under the Trails Act occurs when state law reversionary property interests that would otherwise vest in the adjacent landowners are blocked from so vesting ... We conclude that this occurs when the railroad and trail operator communicate to the STB their intention to negotiate a trail use agreement and the agency issues an NITU that operates to preclude abandonment under Section 8(d).

The issuance of the NITU is the only government action in the railbanking process that operates to prevent abandonment of the corridor and to preclude the vesting of state law reversionary interests in the right-of-way.

Thus, the NITU operates as a single trigger to several possible outcomes. It may, as in this case, trigger a process that results in a permanent taking in the event that a trail use agreement is reached and abandonment of the right-of-way is effectively blocked ... Alternatively, negotiations may fail, and the NITU would then convert into a notice of abandonment. In these circumstances, a temporary taking may have occurred. It is not unusual that the precise nature of the takings claim, whether permanent or temporary, will not be clear at the time it accrues.

This decision was challenged by Barclay v. United States, 443 F.3d 1368 (2006), but it was reaffirmed by the United States Court of Appeals, Federal Circuit.

In the case of Ladd v. United States, 90 Fed. Cl. 221 (2009), a NITU had been issued, but negotiations failed and a trail use agreement was not reached. Plaintiffs filed a taking claim after the NITU was issued in accordance with the Caldwell decision, claiming they had been prevented from enjoying the unencumbered use of their property. The United States Court of Federal Claims dismissed the case, stating that no taking had occurred, since no interim use resulted. On appeal, the United States Court of Appeals, Federal Circuit, affirmed its former decisions in Caldwell and Barclay, stating that “where no trail use agreement is reached, the taking may be temporary ... However, physical takings are compensable, even when temporary” (630 F.3d 1015 (2010)). The decision of the Court of Claims was reversed and sent back for a determination of compensation.

The Katy Trail was realized when the Missouri-Kansas-Texas Railroad Company chose to abandon part of its corridor in Missouri in 1986. The Missouri Department of Natural Resources requested an interim use under the National Trails System Act as amended in 1983 and the Interstate Commerce Commission issued a Certificate of Interim Trail Use or Abandonment in April 1987. An interim trail use agreement was negotiated and the property was transferred later in 1987. Claims for compensation would follow as landowners adjoining the corridor were outraged at being denied the recovery of property occupied by the railroad.

Landowners opposing the Katy Trail took their argument to the United States District Court of Missouri, Eastern District, and were denied (Glosemeyer v. Missouri-Kansas-Texas R.R., 685 F. Supp. 1108 (E. D. Mo. 1988)). Appealing that decision, they took their argument to the United States Court of Appeals, Eighth Circuit, and again were denied (Glosemeyer v. Missouri-Kansas-Texas Railroad, 879 F.2d 316 (1989)). They then recognized that the Katy Trail was not going away and the only option left was a claim for compensation in the United States Court of Federal Claims. Interested landowners were advised that Mountain States Legal Foundation would file a class action suit on their behalf. A few days before the six-year time limit expired, however, Mountain States informed landowners that it would not be able to file the suit as a class action.

Mountain States Legal Foundation did represent Maurice and Delores Glosemeyer, but the remaining landowners were left to scramble for other options. On the day that the six-year limit would expire in 1993, these remaining landowners were able to file a motion for certification of their case as a class action in the United States Court of Federal Claims (Moore v. United States, 41 Fed. Cl. 394, Action No. 93-134L (1998)). They asserted that there were over two thousand (2000) potential class members owning property along the Katy Trail. Action on this case was delayed pending a decision by the United States Court of Appeals, Federal Circuit, in Preseault v. United States, 100 F.3d 1525 (1996), being an appeal of a decision of the United States Court of Federal Claims.

When the Court resumed its consideration of whether or not to certify the case as a class action, it identified the following eight criteria:

(1) whether the potential litigants constitute a large but manageable class;

(2) a common question of law is present;

(3) that [a] common issue predominates over any separate factual issues affecting individual members;

(4) the claims of the present plaintiffs must be typical of the claims of the class;

(5) the government must have acted on grounds generally applicable to the whole class;

(6) the claims of the class must be so small that it is doubtful they would be otherwise pursued;

(7) the current plaintiffs will adequately protect the interests of the class; and

(8) there is risk of inconsistent adjudications if individual actions were maintained separately, some in district court and some in this court.

More generally, class actions are appropriate only where they serve the interests of justice. [at page 397]

The Court decided that the case was well-suited for class action treatment. It, therefore, certified the action on July 2, 1998 as a class action on an “opt-in” basis. The class was to “consist of landowners whose property is burdened by the Katy Trail.” Potential class members were to be notified and those interested in joining were required to file a “Notice of Appearance.”

The Notice of Appearance shall have attached to it documentation that establishes (1) ownership of the parcel of land in question, (2) an affidavit that the parcel of land is presently burdened by the Katy Trail, and (3) proof of the property interest conveyed to the railroad. [footnote 4, page 401]

The government may contest the eligibility of any individual to join the class on the grounds that (1) the individual is not the fee owner of the burdened land, (2) the interest conveyed to the railroad contains no limitation and was in fee simple absolute, (3) the supporting documentation attached to the Notice of Appearance is inadequate, or (4) any other similar reason. [at page 401]

These preceding court actions had been specifically for those landowners adjoining the Katy Trail from Machens in Saint Charles County to Sedalia in Pettis County. There was, however, a separate abandonment proceeding in progress for the section of Missouri-Kansas-Texas Railroad corridor from Sedalia to Clinton in Henry County. The MKT had merged with Missouri Pacific Railroad Company in December 1989 and a Certificate of Interim Trail Use or Abandonment was issued in April 1991, so that Missouri Pacific could negotiate for an interim trail use agreement. An attempt was made to add landowners adjoining this second segment of corridor to the original class action suit, but the Court of Federal Claims denied this request, noting that it was both untimely and inappropriate (Moore v. United States, 42 Fed. Cl. 595 (1998)).

The Court of Federal Claims cases of Glosemeyer v. United States, Action No. 93-126L, Moore v. United States, Action No. 93-134L, and Grantwood Village v. United States, Action No. 98-176L, were consolidated for the purpose of resolving common issues of federal and Missouri law (45 Fed. Cl. 771 (2000)). The Court determined that interim trail use in accordance with the amended National Trails System Act did not constitute a railroad purpose under Missouri law where an easement had originally been acquired for railroad purposes only. Such an easement would have been extinguished whenever the use for railroad purposes ended. Therefore, delaying abandonment of the corridor and allowing interim use for recreation created a new easement for which compensation is required. The cases were then unconsolidated for further action.

For the class action suit of Moore v. United States, Action No. 93-134L, two hundred and ninety-eight (298) landowners opted into the class. The properties were grouped into categories and a representative parcel from each category was presented for examination by the Court with the intention that the decision on a representative parcel could be applied to the other parcels in the same category. A bench trial was conducted in Saint Louis, Missouri from November 12 through 22, 2002 on thirteen (13) representative parcels (54 Fed. Cl. 747 (2002)). The parties and the Court conducted a site visit of the representative parcels and then fact and expert witnesses were presented to show the competing views as to the value of the easement taken.

The Court described the procedure for determining the amount of compensation as follows:

It is settled that a landowner claiming a physical, partial taking of property is entitled to the difference in value before and after the taking. In this case, each landowner suffered a partial taking in two senses. First, the new easement is less than the fee estate. Second, the new easement potentially negatively impacts a larger piece of land than the right of way itself. This is known as severance damage and constitutes a pedigreed element of compensation, assuming it can be proved.

The calculation, therefore, involved “a determination of the fair market value of the entire affected parcel as if the easement did not exist and then another determination in light of the taking.”

Each parcel was appraised to determine a highest and best use and the acreage was determined. There was some disagreement about how the right-of-way parcels should be evaluated, but the Court decided “the right of way parcel should be diminished 100% in the “after” analysis because the landowners had no effective remaining use of the property ... Accordingly, the parties should value the land underlying the right of way in the “after” calculation at zero.” Where there was inconsistency in the values presented by each side, the court determined a compromise value, often by averaging the acreage calculations and taking the higher per unit land valuation. Compensation for the thirteen (13) representative parcels was fixed to facilitate settlement of the remaining claims.

Based on this representative determination, the parties agreed on the amount of compensation for a total of two hundred and eighty (280) claims out of the two hundred and ninety-eight (298). In a further proceeding of Moore v. United States, 58 Fed. Cl. 134 (2003), the Court of Federal Claims examined and dismissed seven (7) claims. The parties were able to resolve the amount of just compensation for eight (8) more claims. In a subsequent proceeding of Moore v. United States, 61 Fed. Cl. 73 (2004), compensation was established for the three (3) remaining claims.

After twelve years of litigation in the United States Court of Federal Claims (1993-2005), a final proceeding was held in January 2005 to approve a final settlement in the class action suit (Moore v. United States, 63 Fed. Cl. 781). Judgment against the United States was entered in the total amount of $5,065,820.62 (including $4,065,820.62 for principal and interest and $1 million for attorney fees, expert fees, and all other litigation expenses). The award was paid to the class action attorney for distribution to class members. Deductions from the award by the attorney of $356,745.33 for litigation expenses and $1.6 million for a contingency fee were approved by the Court. The remaining $3,109,075.29 was distributed to the two hundred ninety-one (291) class members for which compensation had been approved.

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original composition by Steven E. Weible

Missouri's Katy Trail Goes to Court

THE NATIONAL TRAILS SYSTEM ACT OF 1968

After World War II, America’s population was growing and disposable incomes were on the rise, leading to a greater demand for outdoor recreational opportunities. The idea of a national system of trails began to find its way into Federal legislative efforts as early as 1945. By the 1960s the demand for walking, hiking and bicycling trails had surpassed available opportunities (Trails for America).

President Lyndon B. Johnson expressed his support for a national system of trails to the U. S. House of Representatives in his February 8, 1965 message on “Natural Beauty.” He called for a balance of recreational trail opportunities in both urban and rural areas and noted that full use should be made of rights-of-way and other public paths. He directed the Secretary of the Interior to work with his colleagues in the Federal government as well as State and local leaders to recommend a cooperative program to encourage a national system of trails (Congressional Record, February 8, 1965, pg 2087). The Secretary of the Interior began working on this directive by requesting a study from which appropriate legislation could be drafted.

This nationwide trail study was conducted by the Bureau of Outdoor Recreation within the U.S. Department of the Interior and resulted in the 1966 publication entitled, “Trails for America” (GPO). The study examined existing and potential opportunities for national scenic trails, park and forest trails and metropolitan area trails. It also recognized that public utility rights-of-way for electric, telephone, telegraph and natural gas transmission lines and abandoned railroad corridors and even canal banks provided special opportunities for trail development. It further stated that “all Federal agencies having jurisdiction over the allocation and use of such rights-of-way should cooperate fully in the development of trails” and “State agencies having similar jurisdiction also should encourage and support development.”

The findings and recommendations of this study led to the introduction of legislation in 1966. Eventually the proposal found its final form in the National Trails System Act of 1968 (Public Law 90-543; 82 Stat 919; 16 U.S.C. 1241 et seq). This Act established a national system of recreation trails, scenic trails and connecting trails and created the standards and methods by which additional trails could be added to the system. National recreation trails were intended to provide a variety of outdoor recreation uses reasonably accessible to urban areas. National scenic trails were intended to be extended trails, providing enjoyment of nationally significant scenic, historic, natural or cultural outdoor areas. The Appalachian Trail and the Pacific Crest Trail were designated as the first national scenic trails. Connecting trails were intended to provide additional points of public access to or connections between national recreation trails or national scenic trails.

Section 8 of the Act directed the Secretary of the Interior, the Secretary of Agriculture and the Secretary of Housing and Urban Development to encourage State and local agencies, private interests and nonprofit organizations to establish trails in parks, forests and urban areas.

Section 9(b) of the Act acknowledged the potential for trails along roadways, utility rights-of-way and similar properties. Federal agencies having jurisdiction over use, abandonment or disposition of these were directed to cooperate with the Secretary of the Interior and the Secretary of Agriculture to ensure that suitable properties were made available for trail use.

THE RAILROAD REVITALIZATION AND REGULATORY REFORM ACT OF 1976

Railroads had developed rapidly in the 1800s to satisfy the need to move passengers and freight over long distances as the nation developed and expanded. As time passed, however, railroads began to lose market share to other forms of transportation. By the 1970s railroad activity had declined significantly and needed reform if it was to continue as a viable means of transportation. As part of this reform the Railroad Revitalization and Regulatory Reform Act of 1976 (Public Law 94-210; 90 Stat 31; 45 U.S.C. 801 et seq) was passed “to provide the means to rehabilitate and maintain the physical facilities, improve the operations and structure, and restore the financial stability of the railway system of the United States, and to promote the revitalization of such railway system, so that this mode of transportation will remain viable in the private sector of the economy and will be able to provide energy-efficient, ecologically compatible transportation services with greater efficiency, effectiveness, and economy.”

Railroads had been declining rapidly and there was concern that these abandoned rail corridors would be lost and no longer available should rail service be needed again in the future. Therefore, Section 809 of this Act called for a study to evaluate the potential for conversion of railroad rights-of-way to alternate uses where rail service had been discontinued or was likely to be discontinued. The concept of a rail bank was to be evaluated as a means to assure the availability of rights-of-way for future railroad use, particularly in areas where fossil fuel natural resources or agricultural production were located. Interim uses for these rights-of-way were also to be considered. State and local governmental entities were to be encouraged to develop recreational and conservation uses of abandoned railroad rights-of-way.

Section 809(c) amended the Interstate Commerce Act (49 U.S.C.) to require the Interstate Commerce Commission to make a further finding in cases of abandonment to determine suitability of the right-of-way for other public purposes, such as roads or highways, other forms of mass transportation, conservation, energy production or transmission, or recreation. If the property was determined to be suitable for other public purposes, disposal of the property was not to be permitted until it had first been offered for acquisition for public purposes.

AMENDMENT OF THE NATIONAL TRAILS SYSTEM ACT

Over time it became apparent that these past legislative efforts had not been successful in establishing a process by which inactive railroad corridors could be used for trail purposes. Once a railroad corridor had been abandoned, it may not be recoverable for trail use. An amendment, therefore, was needed to ensure that potential interim trail use was considered prior to abandonment of the right-of-way. In addition, some provision was needed to protect the railroad from liability during the period of interim use (House Report No. 28, 98th Congress, 1st session, 1983).

Consequently, Section 8 of the National Trails System Act (16 U.S.C. 1247) was amended in 1983 (Public Law 98-11, Section 208; 97 Stat 42). The new Section 8(d) reiterated as national policy the desire to preserve established railroad rights-of-way and to protect rail transportation corridors for future reactivation of rail service. State and local agencies and private organizations were encouraged to establish trails in existing, inactive corridors as an interim use. The interim use would not be treated as an abandonment of the right-of-way, since the right-of-way must remain available for a return to active rail service.

To relieve the railroad company of liability during the interim use, the interim use sponsor, whether a State, political subdivision or qualified private organization, had to agree to (1) assume full responsibility for the management of the right-of-way; (2) assume any legal liability; and (3) pay any and all taxes that may be levied or assessed against the right-of-way. The Interstate Commerce Commission would impose appropriate terms and conditions as a requirement of any transfer or conveyance for interim use and would not permit the right-of-way to be abandoned.

This section was further amended in 1995, when the Interstate Commerce Commission was abolished and replaced with the Surface Transportation Board (Public Law 104-88; 109 Stat 803; 16 U.S.C. 1247(d)).

THE KATY TRAIL IN MISSOURI

The Missouri-Kansas-Texas Railroad Company (MKT) operated a railroad line that traversed the State of Missouri. Right-of-way south of the Missouri River had been acquired in the 1860s and 1870s, while the section of right-of-way from the Missouri River crossing in Howard County to Machens in Saint Charles County had been acquired in the 1880s and 1890s. Much of this latter part of the route followed the bank of the Missouri River and was subject to frequent damage from flooding. In 1986 the company decided it was no longer feasible to continue operation in this area and filed an application in September with the Interstate Commerce Commission to abandon about 200 miles of right-of-way from Sedalia to Machens.

Trail proponents in Missouri recognized a golden opportunity to utilize the amended National Trails System Act to develop a long distance trail crossing the state. With financial backing from Edward D. “Ted” Jones Junior of Edward Jones financial services, the State of Missouri through the Department of Natural Resources submitted a request to the Interstate Commerce Commission (ICC) in October 1986 for a Certificate of Interim Trail Use to develop a recreational trail on the Missouri-Kansas-Texas Railroad right-of-way. The ICC approved the request and granted the Certificate of Interim Trail Use in April 1987 (ICC docket No. AB-102 (Sub-No. 13)). The interim trail use was subject to the conditions of the National Trails System Act as amended in 1983, preserving the right-of-way and forestalling abandonment.

Missouri-Kansas-Texas Railroad Company and the Missouri Department of Natural Resources then entered into an Interim Trail Use Agreement in June 1987. As salvage operations were completed in the succeeding months, conveyances of the right-of-way were executed for each county that was crossed. Construction of the trail followed shortly thereafter.

OPPOSITION AND COURT CHALLENGE

Trail enthusiasts were ecstatic, but landowners adjoining the MKT right-of-way were not so enthused. In fact, they were shocked and outraged. “You’re stealing my land! You’re stealing my land!,” they cried. Then the lawyers saw a golden opportunity and the litigation began.

These landowners argued that the right-of-way had been an easement acquired for railroad purposes only and for no other purpose. Once the railroad ceased to operate, they believed that by state law the right-of-way should revert to the present owners. In December 1986, one hundred and forty-four (144) individuals owning property along the right-of-way joined together in filing an action in state court to quiet title to the right-of-way. State court, however, was not the proper venue to challenge federal law, so the case was moved to the United States District Court of Missouri, Eastern District.

The first named plaintiffs for the case were Maurice and Dolores Glosemeyer. Defendants named in the case were the Missouri-Kansas-Texas Railroad Company (MKT), the Missouri Department of Natural Resources and its director, Frederick A. Brunner (Glosemeyer v. Missouri-Kansas-Texas R.R., 685 F. Supp. 1108 (E. D. Mo. 1988)). There were many more parties interested in the outcome of this case, however, so the Court allowed these additional parties to intervene as defendants, including the United States of America, the Conservation Federation of Missouri, the National Wildlife Federation, the Rails to Trails Conservancy, the Lewis and Clark Nature Trail Foundation, the Sierra Club, the Paralyzed Veterans of America, BICYCLE USA, the Lewis and Clark Heritage Foundation, the American Hiking Society, the Katy Missouri River Trail Association and the American Rivers Conservation Council. The Court also allowed the American Farm Bureau Federation and the Missouri Farm Bureau Federation to file briefs in support of the plaintiffs as “friends of the court.”

The plaintiffs challenged 16 U.S.C. Section 1247(d), the Interstate Commerce Commission’s regulations applying the provisions of that section and the ICC’s order applying the section and its regulations to the MKT right-of-way. They claimed that Section 1247(d) constituted (1) an invalid exercise of the commerce clause power under Article I, Section 8 of the United States Constitution; (2) an impermissible impairment of the obligation of contracts under Article I, Section 10 of the United States Constitution; (3) a violation of due process under the fifth and fourteenth amendments of the United States Constitution; (4) a taking of property without just compensation under the fifth amendment of the United States Constitution; and (5) a violation of various Missouri constitutional and statutory provisions. The plaintiffs, therefore, wanted the Court to declare Section 1247(d) and the ICC’s regulations and order unconstitutional. Then they wanted the Court to quiet title in each plaintiff for his respective interests in the MKT right-of-way. The Interest Groups that had been allowed to intervene as defendants filed a counterclaim, requesting that the Court declare Section 1247(d) and the ICC’s regulations and order constitutional.

In its decision, dated May 10, 1988, the District Court determined that it had jurisdiction to consider plaintiffs’ challenge to Section 1247(d), but that any challenge to the ICC’s regulations and order were the exclusive jurisdiction of the federal circuit court of appeals.

The District Court determined that plaintiffs’ assertion that Congress exceeded its power under the commerce clause by enacting Section 1247(d) was without merit.

The District Court further determined that plaintiffs’ claim of an impermissible impairment of the obligation of contracts under Article I, Section 10 of the United States Constitution was also without merit, since the section cited pertained to state legislation and not federal legislation.

As to the plaintiffs’ claim of a due process violation under the fifth amendment of the United States Constitution, the District Court recognized that an analysis was appropriate, but that the plaintiffs failed to demonstrate that Congress had acted in an arbitrary and irrational way when it enacted Section 1247(d).

The plaintiffs’ claim that their reversionary rights to the property had been impaired by a temporary regulatory taking without just compensation was rejected by the Court, since a suit for compensation through the United States Court of Claims was available to them under the Tucker Act (28 U.S.C. Section 1491). The Court did not address the question of whether or not a taking had occurred.

The District Court further rejected plaintiffs’ argument that Section 1247(d) violated numerous state constitutional and statutory provisions, as well as, state common law, since the state laws cited were preempted by federal law.

In conclusion, the District Court rendered judgment in favor of the defendants and against the plaintiffs and further declared 16 U.S.C. Section 1247(d) constitutional.

Plaintiffs promptly appealed to the United States Court of Appeals, Eighth Circuit (Glosemeyer v. Missouri-Kansas-Texas Railroad, 879 F. 2d 316 (1989)). The Court of Appeals heard the arguments and considered the analyses of the District Court. In its decision, dated July 5, 1989, the Court of Appeals recognized the opinion of the District Court as being well-reasoned. It, therefore, affirmed the decision of the District Court. Like the District Court, the Court of Appeals did not address the question of whether or not a taking had occurred, since the pertinent question was whether or not compensation could be obtained. As the District Court had stated, a suit for compensation was available to the plaintiffs through the United States Court of Claims under the Tucker Act.

A similar case from Vermont also challenged the validity of the “rails-to-trails” provision of the amended National Trails System Act and took the argument to the United States Supreme Court (Preseault v. Interstate Commerce Commission, U.S. Reports, Volume 494, page 1, 1990). The Supreme Court decision for that case, dated February 21, 1990, stated that “the statute is a valid exercise of congressional power under the Commerce Clause” and that “even if the rails-to-trails statute gives rise to a taking, compensation is available to petitioners under the Tucker Act.” In its analysis, the Supreme Court referenced the decision of the District Court in Glosemeyer v. Missouri-Kansas-Texas R. R. Co., 685 F. Supp. 1108, 1120-1121 (ED Mo. 1988).

Having thus far failed to find satisfaction, Maurice and Dolores Glosemeyer enlisted the counsel of Mountain States Legal Foundation and took their claim to the United States Court of Federal Claims to argue for a taking without just compensation against the United States of America (Action No. 93-126L). The Court of Claims examined the primary question as to whether or not the preservation of rail corridors for future reactivation by allowing an interim use constituted a railroad purpose under Missouri law. In its opinion, filed January 14, 2000, the Court determined that it did not. The easements for railroad purposes would have been extinguished under Missouri law had they not been preempted by federal law. As a result, the Court decided that the imposition of an interim use constitutes the taking of a new easement for which compensation is required.

While the Glosemeyers eventually prevailed in their claim for compensation, it should not be presumed that all landowners adjoining railroad rights-of-way that have been converted to an interim use are eligible for compensation. These rights-of-way were acquired in many parcels, some as easements, some in fee simple and some by condemnation. Each document of conveyance must be examined on its own merits in its historical context to determine the nature of the property interest acquired by the railroad. This will then determine whether or not an adjoining landowner has any basis for a takings claim.

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original composition by Steven E. Weible

Claims to Land in Missouri after 1836

This article has been modified. See Chapter 17 of "It Was Not Quick and It Was Not Simple: The Saga of Private Land Claims in Missouri" (Go to book now.)

The second board of commissioners had informed the Commissioner of the General Land Office in its final report, dated September 30, 1835, that it was unable to complete the investigation of all the claims that it was authorized to examine. There were about seven hundred (700) claims in the State of Missouri that still needed a decision. The board had earnestly recommended that the investigations should continue until the business was finally completed. If Congress should pass an act for that purpose, the board estimated that the work could be completed in another two years (ASP:PL Vol. 8, pg 22).

Dr. Lewis F. Linn, U. S. Senator for Missouri, serving on the Committee on Private Land Claims, recommended to the U. S. Senate on January 4, 1837 that new legislation be passed to complete the unfinished business of the second board of commissioners. It was highly desirable to permanently settle the land titles in the State of Missouri associated with these claims (ASP:PL, Vol. 8, pg 923).

In each succeeding year the U. S. Senate passed a bill to continue the work left unfinished by the second board of commissioners. The U. S. House of Representatives, however, failed to address the matter. Senator Linn reported to the Senate on behalf of the Committee on Private Land Claims on April 20, 1842 again urging the passage of the bill (Senate Doc. No. 258, 27th Congress, 2nd Session, 1842, Serial No. 398).

Another bill had been introduced, however, that would revive the expired Act of May 26, 1824, chapter 173, An Act enabling the claimants to lands within the limits of the state of Missouri and territory of Arkansas to institute proceedings to try the validity of their claims (U. S. Statutes at Large, Vol. 4, pg 52). This bill would also extend the provisions of the revived act to additional states that were dealing with similar issues with private land claims (House Doc. No. 905, 27th Congress, 2nd Session, 1842, Serial No. 410). The U. S. House of Representatives supported this bill and it passed as the Act of June 17, 1844, chapter 95, An Act to provide for the adjustment of land claims within the States of Missouri, Arkansas, and Louisiana, and in those parts of the States of Mississippi and Alabama south of the thirty-first degree of north latitude, and between the Mississippi and Perdido rivers (U. S. Statutes at Large, Vol. 5, pg 676). The provisions set out in the 1824 act, as they pertained to the State of Missouri, were to be continued in force for a term of five years and no longer and were extended to the States of Louisiana and Arkansas and parts of the States of Mississippi and Alabama.

In February 1847, the General Assembly of Missouri complained to Congress that there were still many private land claims in an unsettled state and that the uncertainty surrounding them hindered settlement and development. Many of these claims, through negligence, ignorance or unfortunate circumstances, had failed to be presented to the recorder of land titles when required and had, thus, been excluded from consideration by previous acts of Congress. They further complained that the Act of May 26, 1824, chapter 173, allowing claimants to seek confirmation from the courts was so expensive and difficult that very few claimants were able to pursue that course of action. The General Assembly requested that Congress pass a law for the final adjustment of all of these claims, stating, “It is better to settle them at once, even if some unjust ones are confirmed in the mass, than to spend years of legislation and litigation to separate the good from the bad. The time and money thus wasted, and the injury to the country by retarding its improvement, would be far greater than the value of any illegal claim that might be thus included” (Laws of Missouri, 14th General Assembly, first session, 1846-1847, pg 358).

The Act of June 22, 1860, chapter 188, An Act for the final Adjustment of Private Land Claims in the States of Florida, Louisiana, and Missouri, and for other Purposes (U. S. Statutes at Large, Vol. 12, pg 85) authorized claimants and their legal representatives to apply for the confirmation of their title to any lands claimed in Florida, Louisiana or Missouri by virtue of a grant, concession, order of survey, permission to settle or other written evidence originating from any foreign government prior to the transfer of the territory to the United States. In Missouri, claimants were to file a notice in writing with the recorder of land titles at St. Louis, along with the supporting evidence of their claim. They were to include a brief abstract of the title, copies of the plats of survey, if any, and a sworn statement by the claimant indicating the legal divisions and subdivisions of the public land surveys that corresponded with the location of the claim. Any claim that had already been twice rejected on its merits by any previous board of commissioners was barred from consideration.

The recorder of land titles was to record the notices and evidence, hear witnesses, seek out existing public records, thoroughly examine the claim and provide an opinion as to whether it should be confirmed or rejected. He was then to make a report to the Commissioner of the General Land Office, separating the claims into three distinct classes.

Class number one was for all claims recommended for confirmation that had been possessed and cultivated by the claimants or their predecessors in title for a period of at least twenty (20) years before the date on which notice was filed with the recorder of land titles. The claim had to be based on some grant, concession, order of survey, permission to settle or other written evidence of title that originated from the foreign government claiming sovereignty at a date before the territory was transferred to the United States.

Class number two was for all claims recommended for confirmation that were based on written evidence of title as in Class number one, but which had not been actually possessed and cultivated for a period of at least twenty years prior to the filing of the claim.

Class number three was for all claims that were not recommended for confirmation. Justification for rejection may include defect of proof, suspicion of fraud, uncertainty of location, vagueness of description or any other sufficient cause. No claim was to be included in class one or class two that had been rejected as being fraudulent by any prior board of commissioners.

If the Commissioner of the General Land Office approved the report of classes one and two, then the report was sent to Congress for further action. If the report of class three was approved by the Commissioner, the rejection of the claims was to be final and conclusive and the land was to be considered as public land of the United States (section 4). The Commissioner was also to report to Congress all claims in any of the three classes of which he disapproved (section 5). The Commissioner was to report to each regular session of Congress all activity done under this act (section 10).

Section six of the act provided that if the claim was confirmed and it had already been sold, in whole or in part, by the United States prior to the confirmation or if the surveyor general determined that the land claimed could not be surveyed and located, then the claimant was authorized to select from the public lands subject to private sale a quantity equal to what had been sold by the United States. The land selected was to conform to the legal divisions and subdivisions of the surveys of the public lands.

If a tract of land was claimed as a complete grant, but had not been possessed and cultivated by the original claimant or his successors in title for twenty years as required, then those making the present claim had the option to forego the proceedings of this act and to enter a petition in the district court of the United States (section 11).

This act was to remain in force for five years (section 12). Any proceeding that extended beyond the five years was permitted to be prosecuted to a final decision.

For claims or grants of land derived from any foreign government that had not yet been located by survey, the Act of June 2, 1862, chapter 90, An Act for the Survey of Grants or Claims of Land (U. S. Statutes at Large, Vol. 12, pg 410) authorized claimants to make application to the proper officer of the United States government for a survey to be performed at the expense of the claimant. The survey gave no more validity to the claim than to define its true location.

The provisions of the 1860 Act were extended for an additional three years by the Act of March 2, 1867, chapter 184, An Act to extend the Provisions of an Act entitled, “An Act for the final Adjustment of private Land Claims in the States of Florida, Louisiana, and Missouri, and for other purposes” (U. S. Statutes at Large, Vol. 14, pg 544).

The provisions of the 1860 Act were further extended for another three years by the Act of June 10, 1872, chapter 421, An Act to extend the Provisions of an Act entitled “An Act for the final Adjustment of private Land-claims in the States of Florida, Louisiana, and Missouri, and for other Purposes” (U. S. Statutes at Large, Vol. 17, pg 378). Section two of this act also provided for the confirmation of claims to land as specified in Section one of the 1860 Act in all cases where it could be shown that the claimants and their successors in title had continuously maintained possession of the land claimed since the date of the transfer to the United States.

Eventually it became necessary to pass the Act of June 6, 1874, chapter 223, An act obviating the necessity of issuing patents for certain private land-claims in the State of Missouri, and for other purposes (U. S. Statutes at Large, Vol. 18, part 3, pg 62). The first section of this act released all of the right, title and interest of the United States in and to all of the lands in the State of Missouri that had previously been confirmed by any act of Congress or by any officer or officers, or any board or boards of commissioners acting under the authority of any act of Congress. The lands were released in fee simple to the owners of equitable title as completely as could have been done by patents issued according to law.

Section two of the act noted that the act did not affect the validity of any conflicting or adverse claim to the same land. The act also did not pertain to any lands previously relinquished to the United States.

Section three of the act provided for the discontinuance of the office of recorder of land titles, when the public interest no longer required it. All of the records of the recorder of land titles were to be transferred to the State of Missouri with the United States reserving the right of free access to the records. After the discontinuance of the office, the former duties of the recorder of land titles would pass to the Commissioner of the General Land Office.

The office of recorder of land titles in the State of Missouri was formally abolished by the Act of July 31, 1876, chapter 246, An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and seventy-seven, and for other purposes (U. S. Statutes at Large, Vol. 19, pg 102 (see pg 121)). The office ceased to exist after September 30, 1876.

Since it appeared that some act of the General Assembly of Missouri was necessary to affect the transfer of records from the United States to the State of Missouri, the General Assembly passed “An Act to provide for the removal of the archives in the office of the United States Recorder of Land Titles of Missouri,” which was approved April 28, 1877 (Laws of Missouri, 29th General Assembly, Regular Session, 1877, pg 318). The Register of Lands was to receive the records and keep them in his office.

The office of Register of Lands was abolished by an act of the General Assembly of Missouri, approved February 25, 1891 (Laws of Missouri, 36th General Assembly, Regular Session, 1891, pg 181). Upon expiration of the last term of office in 1892, the responsibilities and records of the Register of Lands were transferred to the Missouri Secretary of State.

SOURCES

American State Papers, Public Lands (ASP:PL)

Laws of Missouri, State Documents Collections, Missouri State Archives, Jefferson City, MO

U. S. Congressional Serial Set

U. S. Statutes at Large

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original composition by Steven E. Weible

Claims to Land in Missouri and the Second Board of Commissioners

This article has been modified. See Chapter 16 of "It Was Not Quick and It Was Not Simple: The Saga of Private Land Claims in Missouri". (Go to book now.)

The courts as a means for the final settlement of the as yet unconfirmed private land claims in Missouri had not proven to be satisfactory for the claimants. In January 1831 the General Assembly of Missouri had sent a memorial to Congress, recommending the creation of a board of land commissioners endowed with sufficient powers to achieve full and final justice between the government and these claimants. They believed that such a tribunal should “adopt as its rule of action, to confirm every claim which the government of either Spain or France would have confirmed had no transfer of the territory been made ” (ASP:PL Vol. 6, pg 300).

Since the General Assembly of Missouri kept demanding it and the Committee on Private Land Claims in the U. S. Senate had recommended it in 1828, Congress passed the Act of July 9, 1832, chapter 180, An Act for the final adjustment of private land claims in Missouri (U. S. Statutes at Large, Vol. 4, pg 565). The President of the United States was to appoint two commissioners to join the recorder of land titles in Missouri in examining all the unconfirmed private claims that had already been filed in the recorder’s office. The examination was limited to those claims founded upon any incomplete grant, concession, warrant or order of survey that had been issued by the authority of France or Spain prior to March 10, 1804. They were permitted to receive additional testimony, but it had to be taken within twelve months of the passage of the act.

The recorder and commissioners were to segregate the claims examined into two classes. The first class was to include those claims that they believed would have been confirmed according to the laws, usages and customs of the Spanish government and the practice of the Spanish authorities at New Orleans, if the government under which those claims originated had continued in Missouri. The second class was to include those claims that they believed were destitute of merit, in law or equity, under the same laws, usages, customs and practice of the Spanish authorities. They were also to provide an explanation of their reasoning in each case.

Once this second board of commissioners had organized, the office of the recorder was to be open for the purposes of the examination for two years and no longer. They were to proceed in a summary manner, with or without any new application from the claimants. During the term of their examination and at the commencement of each session of Congress, they were to send a report to the Commissioner of the General Land Office, detailing their opinions on the claims so far examined. The report would be forwarded to Congress for the final decision upon the claims of the first class.

After the final report was submitted by the recorder and commissioners, those claims falling into the second class, being destitute of merit, were to be subject to sale along with the other public lands. Those claims falling into the first class were to be further reserved from sale until Congress rendered a final decision. Any claim that was ultimately rejected by Congress was subject to sale along with the other public lands. An actual settler whose claim was ultimately rejected or any claimant who chose to waive his claim was granted the right of pre-emption to the land encompassing the improvements up to the quantity of their claim, but not exceeding 640 acres.

Andrew Jackson, President of the United States, nominated Doctor Lewis F. Linn of Sainte Genevieve, Missouri and Wilkins Updyke of Rhode Island to serve as commissioners with recorder of land titles Frederick R. Conway. The U.S. Senate confirmed the appointments of Linn and Updyke on July 14, 1832 (Senate Executive Journal, Vol. 4, pg 277). The second board of commissioners was organized on October 1, 1832 (ASP:PL Vol. 8, pg 923), but Updyke resigned shortly thereafter, leaving Conway and Linn to continue taking testimony until a replacement could be confirmed. To further hinder the board’s progress, the Asiatic cholera swept into Missouri, so that many claimants and witnesses were unable to appear before the board to present their testimony. Thus, no report could be made the first year (ASP:PL Vol. 8, pg 22).

On November 19, 1832 recorder Conway and commissioner Linn wrote to the Commissioner of the General Land Office, recommending that the Act of July 9, 1832, chapter 180, be amended in two ways so as to accomplish a truly final settlement of all the claims that could possibly be brought forward. First, they believed that the act should be extended to include claims founded on written grants, concessions, warrants or orders of survey that had not previously been filed in the office of the recorder of land titles, but which might have been submitted to the district court of the United States for Missouri. Second, they believed the act should be extended to include claims based on settlement and cultivation that had previously been submitted and rejected under other acts of Congress (ASP:PL Vol. 6, pg 516).

Congress responded by passing the Act of March 2, 1833, chapter 84, An Act supplemental to the act entitled “An act for the final adjustment of land claims in Missouri” (U. S. Statutes at Large, Vol. 4, pg 661), extending the provisions and restrictions of the previous act to every claim based on settlement and cultivation. Additional testimony for these claims was allowed to be taken for two years from the date of the original act.

President Jackson nominated Albert G. Harrison of Missouri on December 31, 1832 to fill the vacancy left by the resignation of Wilkins Updyke. The U.S. Senate confirmed the appointment of Harrison on January 8, 1833 (Senate Executive Journal, Vol. 4, pg 291, 296).

Before commencing examination of the claims before them, Conway, Linn and Harrison resolved to settle the general principles that would serve as a guide for the decisions they were to make. They reviewed all of the pertinent Acts of Congress, consulted the available compilations of French and Spanish laws and considered the decisions of the United States Supreme Court that had been made up to that time (ASP:PL Vol. 6, pg 703).

On October 30, 1833 they passed a resolution adopting the following guiding principles (ASP:PL Vol. 6, pg 710):

1st. That it was the custom of both France and Spain, and formed a part of the policy of those nations in the settling of new countries, to appoint officers, whose business it was, by express regulations, to grant lands to all such of their subjects as might wish to settle in those countries, for the avowed purposes of improving and populating said countries.

2d. That all acts in relation to grants, concessions, warrants, and orders of survey, done and performed by the French and Spanish officers during the time those governments had possession of and exercised the sovereignty over the province of Upper Louisiana, ought to be considered as prima facie evidence of their right to do those acts and perform those duties, and ought to be held and considered binding on the government of the United States, inasmuch as the acts of the officers in said province were not only tolerated but approved by their superiors in power.

3d. That all grants, concessions, warrants, or orders of survey, made and issued by the French or Spanish officers in the late province of Upper Louisiana on or before the 10th day of March, 1804, where the same are not proved to be fraudulent, ought to be confirmed, provided the conditions annexed to the grant have been complied with, or a satisfactory reason given for not fulfilling the same.

4th. That O’Reily’s instructions or regulations of 18th February, 1770, those of Gayoso of 9th September, 1797, and those of Morales of 17th July, 1799, were not in force in Upper Louisiana, except, perhaps, the provisions contained in those of Gayoso, which related to new settlers.

5th. That sub-delegates, in making grants, &c., were not limited by any known law or custom as to the quantity of arpents they should grant, except, perhaps, as to new settlers, and that such grants passed title, and that a survey was merely an incidental matter after the title had passed by the grant, so as to identify the land, that the grantee might take possession of it.

6th. That what are called incomplete grants by the custom and practice of the country were recognized as property capable of passing by devise, transferable from one to another, and were liable to be sold for debt.

7th. That those grants which are general in their terms pass as good a title as those which are more special, the difference being in the description of the land, and not in the title.

8th. That those officers of the French and Spanish governments whose names are signed to concessions must be presumed to have acted agreeably to powers vested in them by their sovereign, and that their acts are accordingly legal until the contrary is shown.

9th. That fraud is an affirmative charge, and, as relates to the French and Spanish claims, as well as in all other cases, must be proved, and not presumed.

10th. That in all cases where there are conditions to a grant, &c., if the grantee shows satisfactorily that he has been prevented from a fulfillment of the conditions by the act of God, by the act of law, by the enemies of the country, or by the act of the party making the grant, or any other sufficient cause, the grantee will be considered as absolved from the performance of the same, and the grant regarded as absolute.

The second board of commissioners submitted their first report of claims of the first class, dated November 27, 1833, to the Commissioner of the General Land Office, who then forwarded the report to the U.S. Senate on January 18, 1834 (ASP:PL Vol. 6, pg 703). The report contained decisions numbered 1 through 142 that the recorder and commissioners recommended for confirmation.

David Delaunay's claim to 800 arpents was recommended for confirmation by the second board of commissioners as Decision No. 5 of the first class. When surveyed as General Series Survey No. 3128 in Township 41 North, Range 3 East, it was found to interfere with settlement claims previously confirmed by the board of revision. Parts of it had also already been sold by the United States government as indicated by the red letter "S".
(courtesy of the Missouri State Land Survey)

In June 1833 Alexander Buckner, U. S. Senator for Missouri, along with his wife succumbed to the cholera and died. Missouri Governor Daniel Dunklin appointed Dr. Linn to fill the vacancy (Linn and Sargent, pg 78, 129). By the time the first report of the second board of commissioners was submitted to Congress, Dr. Linn had already joined the U. S. Senate. Dr. Linn would eventually end up on the Committee for Private Land Claims.

Albert Harrison resigned as commissioner to the second board and was elected to the U. S. House of Representatives. The second board then having two vacancies could not proceed with its business until those vacancies were filled.

President Jackson nominated James S. Mayfield on February 3, 1834 to replace Dr. Linn (Senate Executive Journal, Vol. 4, pg 347) and he nominated Dr. James H. Relfe on April 8, 1834 to replace Harrison (Senate Executive Journal, Vol. 4, pg 390). The nomination of Mayfield was referred to the Committee on Public Lands in the U. S. Senate and was not approved until April 24, 1834 (Senate Executive Journal, Vol. 4, pg 392). Relfe was approved by the Senate on May 1, 1834 (Senate Executive Journal, Vol. 4, pg 398).

The next iteration of the second board of commissioners with Conway, Mayfield and Relfe resumed the examination of land claims in June 1834. They submitted the second report of claims of the first class, dated December 5, 1834, to the Commissioner of the General Land Office, who then forwarded the report to the U.S. Senate on January 7, 1835 (ASP:PL Vol. 7, pg 773). The report contained decisions numbered 143 through 255 (113 claims) that the recorder and commissioners recommended for confirmation.

John Hand's claim to 300 arpents and John Taylor's claim to 481 acres 8 poles were recommended for confirmation by the second board of commissioners as Decision Nos. 214 and 281, respectively, of the first class. When surveyed as General Series Survey Nos. 3148 and 3147 in Township 31 North, Range 13 East, they were found to interfere with the settlement claim of William Hand, which had been previously confirmed by the Act of April 29, 1816. Part of Survey No. 3148 had already been sold by the United States government as indicated by the red letter "S".
(courtesy of the Missouri State Land Survey)

At some point early in 1835 James Mayfield was removed from the second board of commissioners. President Jackson nominated Falkland H. Martin on March 3, 1835 to replace him and the U. S. Senate approved the appointment the same day (Senate Executive Journal, Vol. 4, pg 483, 484).

The board was approaching a deadline set by the Act of July 9, 1832, chapter 180, so recorder Conway and commissioner Relfe continued the examination of claims until Martin joined them sometime around August 1835. The final reports of the second board of commissioners, dated September 30, 1835, were sent to the Commissioner of the General Land Office, who then forwarded the reports to the U.S. Senate on December 10, 1835 (ASP:PL Vol. 8, pg 20). The third report of claims of the first class contained decisions numbered 256 through 345 (90 claims) that the recorder and commissioners recommended for confirmation. The report of claims of the second class, being claims considered destitute of merit, contained decisions numbered 1 through 152.

The board further reported that they were not able to complete the investigation of all the claims that they were authorized to examine. There were about seven hundred (700) claims in the State of Missouri that remained unexamined. The board earnestly recommended to Congress that the investigations should continue until the business was finally completed. If Congress should pass an act for that purpose, the board estimated that the work could be completed in another two years (ASP:PL Vol. 8, pg 22).

Congress scrutinized the reports of the recorder and commissioners, particularly questioning the validity of the principles used by them in making their determinations. Congress requested opinions and arguments from the Secretary of the Treasury and the Commissioner of the General Land Office, who further called upon the Attorney General of the United States, who deferred to the legal counsel for the United States that had been arguing the similar cases from Florida in the United States Supreme Court (ASP:PL Vol. 7, pg 581, Vol. 8, pg 789). A thorough examination of the facts was pursued.

When Congress was finally satisfied, they passed the Act of July 4, 1836, chapter 361, An Act confirming claims to land in the State of Missouri, and for other purposes (U. S. Statutes at Large, Vol. 5, pg 126). This act confirmed all of the claims recommended for approval by the recorder and commissioners. However, twenty-nine (29) claims were explicitly excluded from confirmation. Any adverse claimants were reserved the right to assert the validity of their claims in a court or courts of justice.

By that time it was entirely possible that all or part of the lands confirmed by this act had already been sold or claimed by someone else under some other law of the United States. If that was the case, no title was conferred by this act to those lands. An equivalent amount of land was permitted to be located on any unappropriated land of the United States within the same state or territory. The new locations were to conform to legal divisions and subdivisions.

Francois Normandeau's claim to 2500 arpents was recommended for confirmation by the second board of commissioners as Decision No. 97 of the first class. When surveyed as General Series Survey No. 3239 in Township 56 North, Range 5 West, it was found to interfere with the claim of Mathurin Bouvet and Charles Gratiot. Nearly all of it had already been sold by the United States government as indicated by the red letter "S".
(courtesy of the Missouri State Land Survey)

SOURCES

American State Papers: Public Lands (ASP:PL)

Linn, E. A. and Sargent, N., The Life and Public Services of Dr. Lewis F. Linn, for Ten Years a Senator of the United States from the State of Missouri, 1857

Senate Executive Journal

U. S. Statutes at Large

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original composition by Steven E. Weible

Claims to Land and the District Court of Missouri

This article has been modified. See Chapter 15 of "It Was Not Quick and It Was Not Simple: The Saga of Private Land Claims in Missouri". (Go to book now.)

Congress had passed its “Act for the final adjustment of land titles ... in the territory of Missouri ” on April 12, 1814, chapter 52 (U. S. Statutes at Large, Vol. 3, pg 121), and the opinions of the recorder of land titles had been confirmed by the Act of April 29, 1816, chapter 159 (U. S. Statutes at Large, Vol. 3, pg 328). The business was finally finished ... except that it wasn’t.

John Scott, the delegate of the Territory of Missouri to the U.S. House of Representatives, wrote to Josiah Meigs, the Commissioner of the General Land Office, on January 27, 1817, expressing the hope “that Government will again at a proper time give to those people whose claims are thus rejected another opportunity to perfect their titles, and I even indulge the hope that provisions will be made to embrace claims that have never been notified, or filed with the Commissioners or recorder “ (Territorial Papers, Vol. 15, pg 238). Meigs responded on January 30, 1817 that “I cannot agree with you in the Idea that a door should be opened for more claims, I think the Govt have been liberal, very liberal, both in time & conditions “ (Territorial Papers, Vol. 15, pg 239).

Meanwhile, the U.S. House of Representatives had been inundated with memorials and petitions regarding the unconfirmed land claims in the Territory of Missouri. On April 16, 1818 the House passed a resolution instructing the Secretary of the Treasury, William H. Crawford, to draft a plan for their final adjustment and settlement (ASP:PL Vol. 3, pg 348).

On April 30, 1818 the President announced by proclamation the first sales of the public lands in the Territory of Missouri (Territorial Papers, Vol. 15, pg 385). John Scott promptly wrote to Secretary Crawford on May 5, 1818, requesting that directions be given to the register and receiver of each land office to withhold from sale those private claims that had previously been examined, but not confirmed (Territorial Papers, Vol. 15, pg 388). Secretary Crawford referred the request to Josiah Meigs, who responded on May 11, 1818, stating that he considered the unconfirmed claims as invalid and subject to sale (Territorial Papers, Vol. 15, pg 391).

Secretary Crawford was still working on the plan requested by the House of Representatives, so he wrote to Josiah Meigs on June 10, 1818, directing him to have the recorder of land titles in the Territory of Missouri furnish descriptive lists of the unconfirmed claims to the register and receiver of the land offices at St. Louis and Franklin, where sales of the public lands had been authorized. These unconfirmed claims were to be withheld from sale for the time being (Territorial Papers, Vol. 15, pg 399).

Samuel Hammond, the receiver at the land office in St. Louis, reported to Josiah Meigs on July 20, 1818 that the recorder of land titles, Frederick Bates, had furnished a list of the unconfirmed claims, but the information was not sufficient to determine actual locations on the township plat (Territorial Papers, Vol. 15, pg 419). In June 1818 Frederick Bates had complained to Meigs that it would be impossible for him to give specific descriptions, since he had no connected plat (Territorial Papers, Vol. 15, pg 401). William Rector, by then the Surveyor of Public Lands in the territories of Missouri and Illinois (Territorial Papers, Vol. 17, pg 332), suggested having the Deputy Surveyors make some connection to the unconfirmed claims while in the field, so that they could be represented on the township plat (Territorial Papers, Vol. 15, pg 402). In August 1818 Josiah Meigs informed Rector that there was no provision for surveying the unconfirmed claims. He had supposed that a reservation of a right angled tract of the appropriate quantity in the correct vicinity would be sufficient (Territorial Papers, Vol. 15, pg 422). This uncertainty of location, however, cast some doubt on what lands could actually be sold (Territorial Papers, Vol. 15, pg 419, 427).

In December 1818 Secretary Crawford submitted his plan to the House of Representatives for the final adjustment and settlement of the unconfirmed claims. He noted that “it is conceived to be extremely improbable that there should be, at this time, any considerable number of claims entitled to the liberality of the Government, which have not yet been submitted to either of the different tribunals that have, from time to time, been constituted for that purpose ... Considering, then, that the titles to lands ... in the Missouri Territory, so far as they are derived from, or dependant upon, any act of Congress, are correctly and finally settled, nothing more is necessary than to prescribe a rule by which the validity of titles, not dependant upon the acts of Congress, may be promptly and legally determined.” He then presented a draft bill that would allow anyone with an unconfirmed private claim to present their case to the district court (ASP:PL Vol. 3, pg 348).

In January 1819 Congress was presented with a memorial from the General Assembly of the Territory of Missouri, urging the enactment of comprehensive legislation that would ensure final justice once and for all to those unconfirmed claims that had originated under the French and Spanish governments (Territorial Papers, Vol. 15, pg 489).

The U.S. House of Representatives took further time to examine the matter, including the instructions given by the Secretary of the Treasury to the Board of Commissioners in 1806 (ASP:PL Vol. 3, pg 355) and the Spanish regulations for granting lands issued by Alexander O’Reilly in 1770, Manuel Gayoso de Lemos in 1797 and Juan Ventura Morales in 1799 (ASP:PL Vol. 3, p 432 and Vol. 4, pg 3). At the conclusion of their examination Congress passed the Act of May 26, 1824, chapter 173, An Act enabling the claimants to lands within the limits of the state of Missouri and territory of Arkansas to institute proceedings to try the validity of their claims (U. S. Statutes at Large, Vol. 4, pg 52).

(The Territory of Arkansas was created as an entity separate from the Territory of Missouri by the Act of March 2, 1819, chapter 49 (U. S. Statutes at Large, Vol. 3, pg 493). The admission of the State of Missouri into the Union of the United States of America was declared complete by proclamation of President James Monroe on August 10, 1821 (U. S. Statutes at Large, Vol. 3, pg 797).)

Section one of the act permitted any person or persons, or their legal representatives, to petition the district court of the State of Missouri to examine the facts and to decide the validity of their claim to land. The act was intended to apply to those claims that were protected by the treaty between the United States of America and the French Republic, dated April 30, 1803, and to which complete titles would have been perfected had the Province of Louisiana not been transferred to the United States. That is, “any French or Spanish grant, concession, warrant, or order of survey, legally made, granted, or issued, before the tenth day of March, one thousand eight hundred and four, by the proper authorities.”

Section two of the act directed that the proceedings for each petition were to be conducted according to the rules of a court of equity. The district court was to have the full power and authority to settle the question of validity of title for each claim. The judgment or decree of the district court was to be final and conclusive, unless appealed to the Supreme Court of the United States within one year. The decision of the Supreme Court would then be final and conclusive.

Section five of the act allowed claimants two years from the passage of the act to bring their petitions before the district court. If by reason of neglect or delay by the claimant the case was not prosecuted to a final decision within three years, the claim was to be barred from further action in any court.

Section seven of the act declared that any claim finally denied by the court or barred from further action in any court was to become a part of the public lands of the United States.

If the court decided in favor of the claimant and against the United States and the claim exceeded one thousand acres, section nine of the act required the attorney of the United States for the district to notify the attorney general of the United States. If the attorney general considered the decision of the district court to be in error, he was to direct that an appeal be made to the Supreme Court of the United States. He was then responsible for prosecuting the appeal.

If a claimant was successful in validating his claim in the district court or Supreme Court and all or part of the claim had already been sold by the United States, section eleven of the act permitted the claimant to select from the public lands a like quantity in parcels conformable to sectional divisions and subdivisions in any land office of the state of Missouri. If the total quantity of land to be selected was not conformable to the smallest sectional subdivisions authorized for sale, the claimant was permitted to purchase at the rate of one dollar and twenty-five cents per acre the additional quantity of land to make one half quarter section.

For the convenience of petitioners section twelve of the act required the judge of the district court to hold sessions at St. Louis, Sainte Genevieve and Jackson. Section twelve also specifically excluded from the provisions of this act a claim of the representatives or assignees of Jacques Clamorgan, deceased, to a tract of land lying between the Missouri River and Mississippi River and covering parts of St. Charles County and Lincoln County.

Section fourteen of the act extended the provisions of the act to the territory of Arkansas in which the superior court of the territory would have jurisdiction.

The Act of May 22, 1826, chapter 157, An Act for the relief of Phinehas Underwood, and for other purposes (U. S. Statutes at Large, Vol. 6, pg 355), extended the time for filing petitions until May 26, 1828.

Claimants who had been anxiously awaiting this opportunity rushed to file their petitions. The first case was taken up in November 1824, but by February 1828 only three cases had been prosecuted to a final decision. All three had failed. Two of the cases had been appealed to the U.S. Supreme Court, but were still waiting to be heard. These disappointing results, accompanied by the expense and delay of the court proceedings, dampened the initial enthusiasm. Rather than fail in court and be barred from further consideration, some chose to withdraw their petitions, while others were discouraged from filing at all. Thus, the remedy was not as satisfactory as the claimants had hoped. A petition was sent to Congress from citizens of the State of Missouri, requesting an amendment that would secure to them the final confirmation of their claims. If that could not be done, they at least needed another two year extension of the deadline for filing a petition with the district court. The outcome of the first appeal to the Supreme Court, which had yet to be heard, would influence any decision to press on in the courts (ASP:PL Vol. 5, pg 458).

The General Assembly of the State of Missouri sent a memorial to Congress in January 1827, urging the passage of an amendment to the law that would result in a speedy and final determination of the claims not yet confirmed. They suggested the formation of a new board of commissioners to further investigate the unconfirmed claims and to examine claims that had not yet been considered. At the very least, they urged that the right of preference to purchase be given to those whose claims were ultimately denied, so that they could purchase the land encompassing their improvements (ASP:PL Vol. 4, pg 880).

The State of Missouri and Territory of Arkansas were not alone in grappling with this issue of unconfirmed claims that had originated from some other entity than the United States. The States of Louisiana, Illinois, Mississippi and Alabama and the Territories of Florida and Michigan were dealing with similar issues with unconfirmed private claims that had originated from Great Britain, France and Spain. To address these unresolved issues the Committee on Private Land Claims in the U.S. Senate was tasked with examining the facts and recommending a solution for the trial and decision of these claims to land. The Committee reported to the Senate on January 9, 1828, suggesting two possible alternatives (ASP:PL Vol. 5, pg 350).

The first alternative was for the United States to sell the land covered by the unconfirmed claims subject to the claims of individuals. The claimants would then be left to litigate their claim with the purchaser. Although this was an alternative, the Committee recognized that it was not a good one, since it may only serve as a relinquishment of interest without any certainty of title. This would not be a favorable outcome for the claimant, the purchaser or the government.

The second alternative was to establish a special tribunal for the trial and decision of the yet unconfirmed private claims. The Committee suggested that the tribunal’s sessions should be conducted in the City of Washington, where the public records were kept and where competent agents were available to represent the rights of the claimants. The Committee felt that this alternative would “best promote the interests of the public, while it will effectually protect the just rights of the claimants.”

The time allowed for claimants to obtain a final decision in the district court was extended to May 26, 1830 by the Act of May 24, 1828, chapter 90, An Act to continue in force for a limited time, and to amend an act entitled “An act to enable claimants to lands within the limits of the state of Missouri and territory of Arkansas, to institute proceedings to try the validity of their claims” (U. S. Statutes at Large, Vol. 4, pg 298). Section two of the act stated that a confirmation by the court served only as a relinquishment of title by the United States and did not impair any adverse claim. Section three of the act permitted those whose claim was ultimately rejected by the court and who were actual inhabitants and cultivators of the soil to claim the right of pre-emption at the minimum price for public lands for the land covered by their improvements within the limits of the rejected claim.

It appears that there were only three claims confirmed by the court of the United States for the district of Missouri. These included an island in the Missouri River claimed by John Mullanphy under Joseph Lapierre and Joseph Aubuchon (General Series Survey # 3085), a tract of 500 arpents claimed by Daniel Dunklin and John Jones under Amable Partenay (General Series Survey # 3310) and a tract of 406 arpents claimed by John Baptiste Placet (General Series Survey # 3311).

General Series Survey # 3085 in Township 47 North, Range 6 East
was confirmed by the U. S. Court for the district of Missouri
(courtesy of the Missouri State Land Survey)

General Series Survey #s 3310 and 3311 in Township 37 North, Range 2 East
were confirmed by the U. S. Court for the district of Missouri
(courtesy of the Missouri State Land Survey)

The first appeals to come to the United States Supreme Court were heard at the January term in 1830. The whole subject of Spanish titles was a new one for that court, one that had never undergone a judicial investigation upon which the court could base a conclusion. As a result, decisions on these cases were postponed to allow time for further consideration. Similar cases from Florida were brought before the court in succeeding terms and the court became more informed about the Spanish laws, usages and customs of granting land, but further postponed final decisions until the subject could be thoroughly examined. The primary difficulty for the court was determining what powers to grant lands were actually vested in the governor general, the intendant, the sub-delegates of the intendant and the local commandants (ASP:PL Vol. 8, pg 516).

Three cases are reported as having been decided by the U. S. Supreme Court at the January term of 1835. A claim of one league square, or 7056 arpents, was confirmed to Charles Dehault Delassus, claiming under his father Pierre Dehault Delassus Deluzieres (General Series Survey # 2969)(ASP:PL Vol. 7, pg 728). A claim of 1281 arpents was confirmed to the heirs of Auguste Chouteau (General Series Survey # 2976)(ASP:PL Vol. 7, pg 730). And a claim of one league square, or 7056 arpents, was confirmed to the devisees of Auguste Chouteau (General Series Survey # 2971)(ASP:PL Vol. 7, pg 731).

General Series Survey # 2969 shown in Township 35 North, Range 5 East
was confirmed by the Supreme Court of the United States
(courtesy of the Missouri State Land Survey)

Three more cases are reported as having been decided by the U. S. Supreme Court at the January term of 1836. A claim of 10,000 arpents was denied John Smith, T. (the T. stands for Tennessee to distinguish him from all of the other John Smiths) under the concession of James St. Vrain (ASP:PL Vol. 8, 515). A claim of 800 arpents was confirmed to the widow and heirs of James Mackay (General Series Survey # 3033)(ASP:PL Vol. 8, pg 518). And a claim of 10,000 arpents was confirmed to the widow and heirs of Antoine Soulard (General Series Survey # 3016) subject to the lands already sold by the United States prior to August 22, 1824, the day on which the petition was filed with the district court (MoSLS: Y9900723.pdf). For the lands that had already been sold, the claimants had the right to select the same quantity from the public lands (ASP:PL Vol. 8, pg 519).

In January 1831 the General Assembly of Missouri again sent a memorial to Congress, asking for a speedy and final adjudication of the private land claims. The memorial stated that “It is now near twenty-eight years since the adoption of the treaty with France, by which these claimants conceive they were guaranteed in their rights to these lands ... If the individual claimants have any just rights, they ought to be confirmed in them; if they have none, the pretence of claim ought to be silenced, and the land brought into market for the benefit of the United States, the State of Missouri, and the neighborhoods in which they lie.” They objected to the ordinary courts of law as a tribunal for adjudication, “because their expensive, tedious and technical modes of proceeding are unsuited to the nature of these claims and to the rights of the claimants.” They again recommended the creation of a board of land commissioners endowed with sufficient powers to achieve full and final justice between the government and the claimants. They believed that this tribunal should “adopt as its rule of action, to confirm every claim which the government of either Spain or France would have confirmed had no transfer of the territory been made ” (ASP:PL Vol. 6, pg 300).

SOURCES

American State Papers: Public Lands (ASP:PL)

The Territorial Papers of the United States, compiled by Clarence Edwin Carter, 1948

U. S. Statutes at Large

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original composition by Steven E. Weible