Alves, &C., v. Town of Henderson

• Decision Date: 11 July 1855
• Citation: 55 Ky. 131
• Court: Kentucky Court of Appeals
• Parties: Alves' Executors and Heirs <I>vs.</I> Town of Henderson.

55 Ky. 131

Alves' Executors and Heirs vs. Town of Henderson.

Court of Appeals of Kentucky.

July 11, 1855.

APPEAL FROM HENDERSON CIRCUIT.

J. Harlan, L. W. Powell, and J. W. Crockett, for appellants —

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Menzies & Spilman for appellees —

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Hughes and Dallam, on the same side —

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Chief Justice MARSHALL delivered the opinion of the Court.

James Alves, claiming to own and to have been for more than twenty years in possession of the land between the Ohio river and Water street. (reduced,) in the town of Henderson, except the cross streets running to the river, filed his bill in 1850, to enjoin Vanzant from continuing to excavate and remove the earth on a portion of that land near the river, which he claimed to be doing under the authority of the trustees, who having been brought before the court by Vanzant, made their answer a cross bill against the complainant, asserted the right of the town in the entire slip between the river and the lots fronting on Water street, under an ordinance of Richard Henderson and company, establishing the town according to a plat, which showed that said slip was dedicated to the use of the town and the public, and calling upon the complainant to exhibit his title, they pray that the title of the town may be quieted, &c.

Alves, in his answer to the cross-bill, relies upon various deeds purporting to convey to him different interests derived from some of the original members of the company of Richard Henderson and company, to which company the Legislature of Virginia, by an act of 1778, to be found in 3d Littell's Laws of Kentucky, 585, had granted, by the name of Richard Henderson and company and their heirs as tenants in common, and without further designation of the grantees, two hundred thousand acres of land on the Ohio, which included what was originally called "the Red Banks," afterwards known as the town of Henderson, and situated on the Ohio river in the present county of Henderson. And he relies especially upon a deed of 1825, purporting to be made by the citizens and lot-holders of the town of Henderson, and to convey to himself and others, whose interest in the slip of land in contest were afterwards conveyed to him, besides certain portions of the public square, all their right, title, and interest in and to Water street, reduced to one hundred and twenty-five feet, which description seems to have been intended to embrace the entire river front between Water street reduced and the river. This deed was in fact executed by a minority of the holders or owners of lots at its date, and by a part only of the citizens. It purports to be made in consideration of certain rights relinquished by Amelia Alves, the heirs of Walter Alves, (of whom James Alves was one,) and Richard G. Hart, as made by a deed between these parties and the citizens of the town of the same date. Which deed, last referred to, conveys the right, title, and interest of the grantors in certain designated lots and in the streets, except the part between the river and Water street reduced, to the citizens of the town, and states its consideration to be the relinquishment by the citizens as evidenced by the deed from them. And the complainant alleges that these deeds were made in compromise of a claim set up by him and others under Richard Henderson & Co.; that the arrangement was made with the consent and approbation of all the citizens, and was moreover ratified by an act of the Legislature in 1827; that all ought to be bound by it, and that should it be disregarded in behalf of the town, great injustice will be done to the adverse claimants, and especially to himself, as their claim is now barred by the statute of limitations, and they cannot be placed in statu quo. He shows subsequent conveyances to himself from Amelia Alves and the heirs of Walter Alves and others. He relies also upon his alleged possession ever since 1825, upon leases, transfers, and other acts of dominion on his part, on his continued payment of taxes for it to the town, and on the recognition of his title by the trustees, in fixing the amount of taxes to be charged therefor. James Alves having died, the original and cross-bills were revived by and against his executors and heirs.

Upon the hearing, a decree was rendered dissolving the injunction which Alves had obtained, and forever quieting the trustees of the town of Henderson, so far as the executors and heirs of Alves are concerned, in the possession, use, and enjoyment of the territory between Front or Water street of said town and the Ohio river, to be held by them as a public common, highway, and landing for the use and benefit of the citizens of said town. And the case is brought to this court by the representatives of Alves.

It appears that as early as June, 1797, Gen. Samuel Hopkins, as the agent, and Thomas Allen, as the surveyor, of Richard Henderson & Co., laid off the town of Henderson, and made a plat of it, exhibiting and defining the lots, streets, and alleys, a large open space as a public square, and the space between the river and the lots fronting towards it entirely open without mark or division; which plat, with the ordinance now to be noticed, was recorded in the Henderson county court. In August of the year 1797, James Hogg and John Williams, two of the original members, and others, claiming to represent other members, met at Williams borough, North Carolina, and passed an ordinance entitled, "ordinance of the Transylvania company, commonly called Richard Henderson and company, directing the disposal of the town of Henderson and the out lots." The first sentence is as follows: "Be it resolved and ordained, that the town of Henderson and all the land, lots, streets, apportionments, and appointments thereof, lying on the Ohio river, in the county of Christian, (as it then was,) and state of Kentucky, as laid off and surveyed by our agent, Samuel Hopkins, and our surveyor, Thomas Allen, agreeable to the plat or form by them made, and to us returned with their certificate, be and the same is hereby established."

The ordinance then goes on to describe more particularly the manner in which the town had been laid off, to give and grant all the lands located in said plats for the purposes of the town, and to prescribe the manner and terms of disposing of lots by the agent, directing donations in some circumstances, also prescribing forfeitures for failure to improve, &c., and reciting the probable advantage to the lands generally from the speedy settlement of the town. It also makes formal provisions with respect to the responsibility of their agent, that he shall submit his books annually to the inspection of commissioners, who have power to remove him for cause; that he shall sell and convey the lots, collect the proceeds, and pay them over in proper proportions to the several persons entitled, or their private agents, &c., &c. And it continues the agency of Samuel Hopkins, with the powers above stated. The conclusion of the instrument is, "in testimony whereof, we the aforesaid company have hereunto set our hands and seals this 9th day of August, 1797." Then follow the names and seals of nine persons, the original number of the company, of which names four are identical with the names of original grantees, owning originally four-eighths of the entire grant; and one other is the name of Walter Alves, the father of the complainant James, through whom he derives a considerable part of his interest, from John Williams, James Hogg, and Thomas Hart, whose names, (that of Thomas Hart by attorney,) are all signed to the ordinance. The fourth name identical with that of an original grantee entitled to one-eighth of the grant, is that of Nathaniel Hart. The identity of name in connection with lapse of time, and the notorious acts done under the ordinance, would authorize the assumption that Nathaniel Hart, the party to the ordinance, was the original grantee of the same name. There is no fact or suggestion in the case to the contrary, unless it be the statement of James Alves in his answer, that only three of the original company were alive at the date of the ordinance. And unless the fact known to one member of the court to have been proved in another case, having no connection with this and not referred in it, that Nathaniel Hart died in 1782, is to operate in this case, it must be presumed that Nathaniel Hart, one of the original grantees, was also a party to the ordinance. But be this as it may, the lapse of time and the nature of the acts done under the ordinance, not only justified the assumption, after the lapse of twenty years, and before 1825, that the ordinance and the signatures thereunto were the genuine acts of those who appear parties to it, but then also authorized the presumption that those who adopted and signed it in the name of the company were either themselves the company, or were authorized to act for it. And it would devolve upon those who deny its efficacy as to themselves, to make out in proof the ground of impeachment. It is to be observed that the act of 1778 making the grant, does not name the individual grantees, but grants the two hundred thousand acres of land to Richard Henderson & Co., and their heirs as tenants in common, thus apparently making or treating them as a quasi corporation, so long at least as...