Newport, &C. v. Taylor's ex'Rs

• Decision Date: 08 February 1855
• Citation: Newport, &C. v. Taylor's ex'Rs, 55 Ky. 699 (Ky. Ct. App. 1855)
• Parties: City of Newport, &c. <I>vs.</I> Taylor's Ex'rs.
• Court: Kentucky Court of Appeals

55 Ky. 699

City of Newport, &c.vs.Taylor's Ex'rs.

Court of Appeals of Kentucky.

February 8, 1855.

APPEAL FROM CAMPBELL CIRCUIT.

Root & Webster for appellants —

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Henry Stansberry on the same side —

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J. W. Stevenson for appellees —

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Morehead & Brown on the same side —

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Chief Justice MARSHALLdelivered the opinion of the Court.

In 1785, a patent was granted by the commonwealth of Virginia, to James Taylor, for 1,500 acres of land, at the junction of the Licking and Ohio rivers, lying on both rivers, and above the mouth of Licking.In 1791 and 1792, Hubbard Taylor, son of the patentee, laid off a portion of said land, at the confluence of the rivers, into streets and alleys, as a town, to which he gave the name of Newport; and made a plat or plan thereof, representing it as situated on the banks of the said rivers, at their junction; and representing, between the Ohio river and the lots fronting on it, a street, and between it and the river an open space, extending to the river, without any line or letter upon it.This space included a narrow and irregular strip of land on top of the bank, and extended to the water's edge.Whether the line dividing the front street from this open space was unbroken, or had breaks or openings opposite to the cross streets coming into it, is not entirely certain, nor is it deemed very material.Besides this representation of the town, the original plat or map had upon it a writing executed by the attorney of the patentee, stating the conditions upon which the lots were to be sold or donated.But these related principally to the terms of payment, and the improvement of the lots by purchasers, and intimated no reservation to the proprietor of any right not indicated by the plat and the fact of his ownership.It appears that some lots were sold and conveyed by reference to this plat, before August, 1795, when a resurvey was made by John Roberts, under the direction of James Taylor, a son, and then the attorney in fact of the patentee, and a new plat was made.By this re-survey and plat, the town was extended up the Ohio river somewhat beyond its original limits.Upon the space between the additional lots and the river, were written the words, "a common;" and on that between the original lots and the river, were written the words, "The Esplanade, to remain a common forever."The conditions indorsed on the original plat were transferred to this new one, but the forfeiture for non-improvement within three years, which was one of the original conditions, was relinquished.Whether there had been any improvements, or were any actual residents within the town, or how many, when this re-survey was made, does not certainly appear.It seems, however, that in January, 1794, the county court of Mason county, in which Newport was then included, had, on motion of James Taylor, (the patentee,) established a ferry from his lands on the Ohio river, over the same, in front of the town of Newport, to have and receive the same fare as is allowed from the opposite shore; and in the same year the same court had, on motion of ____ Bartle, to whom a lot fronting towards the river had been conveyed, granted to him a ferry across the Ohio, from Newport.But in 1795, this court, upon the appeal of James Taylor, reversed the order making that grant, because it did not appear that Bartle had any land on the Ohio river, and the ownership of land on that river, has been made by statute necessary to the grant of a ferry across it, from this side.

In September, 1795, there seems to have been a public sale of lots in Newport, made, of course, by the new plat.But how many lots were sold does not appear.And in December, 1795, an act was passed to establish the town of Newport, then included in the county of Campbell.This act vested the "land comprehended in said town, agreeably to a plat made by John Roberts," with certain exceptions, in certain named trustees; and, besides other provisions for keeping up the town, provided in the seventh section, "that such part of the said town as lies between the lots and the rivers Ohio and Licking, as will appear by reference to said plat, shall forever remain for the use and benefit of said town, for a common; reserving to the said James Taylor, his heirs and assigns, every advantage and privilege which he has not disposed of, or which he would by law be entitled to."

Up to the passage of this act the legal title to all the land "comprehended in said town," except the few lots which had been effectually conveyed to purchasers, had remained in the original proprietor.— In 1799, James Taylor, the patentee, conveyed to James Taylor, his son, a large portion of the land covered by his patent, the boundary of which, as described in the deed, began at the upper corner of the patent, on Licking river, and ran with the back line to certain objects called for, thence to the Ohio river, so as to include Duck creek, and to a corner described, and down the Ohio to a large poplar, mentioned as being the upper boundary of the town of Newport, on the Ohio, "and thence along the several boundaries on the land side of said town of Newport, as ascertained and established by law, and the recorded plat, &c., until the line strikes Licking river;" thence up the same to the beginning, so as to include all of the patent below the upper line of the land conveyed, "except so much as has been appropriated in manner aforesaid for the town of Newport; and also all right and title which said James Taylor, the elder, now hath, or is entitled to, or may hereafter have, or be entitled to, of, in, or to, any ferry, or ferries, from said town of Newport, and every part thereof, over and across both said Ohio and Licking rivers," with all and singular the advantages, privileges, emoluments, &c., of said land, and the ferry, or ferries, hereby granted, &c., and every part thereof.If the slip between the lots and the river was a part of the town of Newport, as established, &c., and the title remained in James Taylor, of Virginia, it would seem not to have passed by this deed, unless under the transfer of the present and future ferries, which may have been supposed to pass such title as the grantor had, and as was necessary to sustain the ferry or ferries referred to.

In 1806 an act was passed, by which, after reciting that the county courts of counties on the Ohio river had, under a previous act, granted ferries across said river — that their authority in such cases had been doubted, and that it was reasonable that the ferries so granted should be confirmed, it was enacted that ferries which had been granted in pursuance of the requisitions of said act, be confirmed, provided that the grantee shall enter into bond, &c.A general authority was also conferred upon the courts of counties lying on the Ohio, to grant ferries across said river, under a restriction as to the distance between them, and a penalty was denounced against transporting persons, &c., across the river to the opposite shore, without authority, &c.And, in June, 1807, an order was made by the Campbell countycourt, which, after reciting the previous grant by the Mason countycourt to James Taylor, of Virginia, of ferries across the Ohio and Licking rivers, also the provisions of the act of 1806 respecting ferries which had been granted across the Ohio, and that it satisfactorily appeared that James Taylor, of Virginia, had, by deed, &c., conveyed to James Taylor, of this (Campbell) county, a fee simple estate in said ferries then established, or to be established, in the town of Newport, thereupon grants or establishes a ferry to "said James Taylor, of Campbell county, in front of the town of Newport, across the Ohio, to the opposite shore, under the law aforesaid, and to be allowed the same rates," &c., &c.And the grantee thereupon entered into the bond required by said act, as owner of the land.

In virtue of these grants, the ferry across the Ohio was carried on under the authority, first of James Taylor, of Virginia, and then of James Taylor, of Campbell county, Kentucky, perhaps from the date of the original grant until the death of the last mentioned James Taylor, in 1848.It had for many years been managed and carried on by his lessees, of whom one was in...