
    Blumenthal, Appellant, v. Roll, et al., Respondents.
    1. The opinion of a surveyor as to the proper location of a concession or grant, is inadmissible in evidence to determine such location.
    
      Appeal from St. Louis Land Court.
    
    William H. Cozens, as appears from the bill of exceptions, testified as follows : “ That he is a surveyor of lands, and has been such sinee the year 18E6. He was born here ; knows the Grand Prairie common field lots, and has become acquainted with them in the course of employment of a surveyor; that he located many lots in the southern part of said Grand Prairie common fields under engagements with the United States surveyor general in the capacity of a deputy of that officer. During the progress of this work, he was required to make investigations of claims south of the St. Charles road, in the course of which he examined witnesses, among whom were the oldest residents of this place, from sixty-five to eighty years of age, who showed him the location of the earliest occupants of land in these common field lots. Amongst these witnesses were Antoine Smith and Jacques Labbie. He knows the Chancillier tract; and from his knowledge of the location of lots in the Grand Prairie in early times, before the change of government, acquired in manner above stated, he believes the true position of it as located by Brown’s survey given in evidence.. North of Chancilli-er lies the lot formerly surveyed by Duralde for Keircereau, which I believe to be correctly located, joining Chancillier on the north. . South, of Chancillier’s a lot is surveyed by the United States for Calve, as appears by the connected plat of the United States survey of the Grand Prairie common field lots. [The plat here referred to is the sanie above mentioned, and the witness spote of lots as located thereon, looking on the plat while testifying.] In the course of my regular employment as above stated, I had to examine the correctness of the survey of the Calve claim, and, in my opinion, it does not belong next south of Chancillier. The claim of Hervieux, of two by forty arpens, belongs there. The Hervieux tract is not located by the United States survey at any place. Next south of Hervieux the lot of Auguste Condé should be located. The claim of Calve, called for by his concession^ should be located in the Cul de Sac, south of the Grand Prairie. The survey of Calve’s claim by the United States was made in 1841 or 1842. The land surveyed for Calve, prior to its being surveyed, was open, unoccupied land, and never was located as a common field lot for any one else,, by survey by the United States, before it was surveyed for the Calve claim.. I locate Hervieux next south of Chancillier, because he has such location by the calls in the archives. Condé is located south of where I think Hervieux belongs, and Condé’s concession calls for Hervieux. Acting as a public officer, employed by the United States, I spent three years in locating and in making the investigations for locating the lots in the Grand Prairie common fields. The value of the land in dispute is worth from ten to fifteen dollars per month. I have made search in the proper offices for a concession to Calve for the land surveyed to satisfy his claim, and could find none. I know the Her-vieux concession ; it lies, in my opinion, south of Chancillier and corners on the land surveyed to Calve.”
    Cross-examined. “Have known the Chancillier tract since 1837 or ’8. As to the Kiercereau lot, as surveyed by Duralde and Marshall, on the connected plat of the Grand Prairie common field lots, I have examined the records — think it correctly located. Kiercereau was the most southern lot surveyed by Duralde, and calls for no one on the south. I surveyed the lot confirmed for Lemonde. The Dunegan survey was made before I commenced — in 1842 or ’8. 1 began my survey in 1845.” The witness takes the concession to Hervieux in his hand, and having read it, says: “I might locate it either north or south of Chan-cillier, looking at this concession alone. Kiercereau was located by Duralde and also by Joseph C. Brown. I found Kier-cereau fixed by the United States where it now is, and also Dunegan, and was told not to touch the survey then made, and acted upon them as though correctly located. But for the survey already made of the Kiercereau land when-1 commenced my work there, it and Chancillier might as well be ten arpens apart, so far as I know. I was told by the surveyor general not to disturb the surveys in the Grand Prairie already made. I do not now recollect why I located Lemonde, as it was surveyed by me, as it stands now in this plat.”
    
      F. A. Dick, for appellant.
    
      W. L. Williams and Minor, for respondents.
   LEONARD, Judge,

delivered the opinion of the court.

The question upon the trial of this cause was as to the proper location of one-half of the St. Louis common field lot conveyed by Chancillier to Gamache in January, 1773, under .which the plaintiff claimed the premises in question. The only description of the land given in the deed is in the language of the translation furnished us by the parties : One-half of an arpent of land in front by forty arpens in depth,” being a portion of a larger tract which he (Chancillier) owns, from having had the same conceded to him by the king, situate in the Grand Prairie, lying to the west of said post (St. Louis),, bounded on one side by the land of Jean Baptiste Hervieux, gun-smith, and on the other side by the part remaining to the’ said Ohancillier.” In order, therefore, to ascertain the half conveyed to Gamache, it was necessary to determine the position of the Hervieux lot, whether north or south of the lot conceded to Ohancillier; and the only evidence given for this purpose resolved itself, at last, into the opinion of Mr. Cozens, a practical surveyor, who gave it as his opinion that the Kirce-réau lot lay next north of Ohancillier, and the Hervieux lot next south of Ohancillier, in the position now occupied, according to the United States surveys, by the lot conceded to Oalve, which the witness thought ought to have been surveyed in the Cul de Sac ; and the court having declared that, on the proof given, the plaintiff was not entitled to recover, the question for our decision is, whether the surveyor’s opinion, as to the locality of the Hervieux lot, was sufficient to require the court to submit the case to the jury.

Mr. Cozens testified to the effect that he was a land surveyor, and knew the Grand Prairie common fields; that he became acquainted with them in the course of his employment under the United States surveyor general as a deputy of that officer, during which he had located many lots in the southern part of these fields; that during the progress of the work, in which he was engaged about three years, he was required to investigate the claims lying south of the St. Charles road, in the course of which he examined old witnesses, who showed him the location of the earliest occupants of the land, and that he had in this manner become acquainted with the position of the lots in the Grand Prairie in early times, before the change of government.

In ordinary cases, the opinions of a witness can not be submitted to a jury, for the reason that it is the province of the jury and not of the witness to draw the proper inferences, for which purpose it is supposed they have sufficient knowledge. When, however, the solution of the question requires a degree of skill which is usually confined to persons exercising a particular act or profession, and is not possessed by men generally, persons skilled in such matters are allowed to give their opinions. This class of cases, however, ought not to be unnecessarily extended ; and opinions should not be'received except where they are the only means of enabling a jury to come to a correct conclusion. In Davis v. Mason, (4 Pick. 156,) the opinion of a practical surveyor, whether piles of stones and marks on trees were monuments of boundaries, were received ; and in Heirs of Farrar v. Warfield and wife, (8 Mart. N. S. 695,) a surveyor was not allowed to give his opinion as to the proper location of a grant, but was required to state facts, leaving the court and jury to make the proper inference from them. The two cases are consistent, and both opinions, we think, are correct. (Evans v. Greene, 21 Mo. 170.)

Although at the trial the evidence was received without objection, yet we are all clearly of opinion that it was insufficient to authorize the court to submit .the case to the jury, and the judgment is therefore affirmed.  