City of Covington v. McNickle's Heirs

• Decision Date: 30 September 1857
• Court: Kentucky Court of Appeals
• Parties: City of Covington <I>vs.</I> McNickle's Heirs.

Page 262

57 Ky. 262

City of Covington vs. McNickle's Heirs.

Court of Appeals of Kentucky.

September 30, 1857.

APPEAL FROM BOONE CIRCUIT.

J. E. Spilman for appellant —

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John W. Stevenson for appellees —

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thos. A. Marshall, on the same side —

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Judge DUVALL delivered the opinion of the court.

This was an action of ejectment brought in Sept. 1850, by the City of Covington against the heirs of John McNickle, to recover the possession of a portion of what was claimed by the appellants as a part of the public landing, or wharf, of the city, within the boundary included by the Ohio river on the north, Front street on the south, Scott street on the east, and Madison street on the west. The action was finally tried in the Boone circuit court, having been removed there by change of venue from Kenton county. A verdict and judgment having been rendered against the city, she has prosecuted this appeal.

Two leading questions are presented by the record, and have been elaborately discussed in the re-argument of this case: 1. Have the appellees exhibited a valid legal title to the ground in contest? And 2. If they have not shown a valid title, have they proved such a possession, by themselves, and by those under whom they hold, as to constitute a valid bar to the appellant's right of entry?

The town of Covington was originally established by an act of the legislature, approved February 8th, 1815. On the 15th August following, the proprietors of the land on which the town was laid out, caused to be recorded in the clerk's office of the Campbell county court, a map or plat of the town, from a copy of which it appears that the strip of ground lying between Front street and the Ohio river, of which the ground in controversy is a part, was expressly dedicated as a common, "for the use and benefit of the said town." This is so certainly and clearly shown by the plat itself, and by the writing which accompanies and forms a part of it, that no reference need be made to the various cases in which the doctrine of implied dedication has been considered.

The first legislative act which, it is contended, conferred upon the trustees of Covington power to dispose of any part of this common, is the act approved December 31, 1827, and is as follows:

"Whereas, it is represented to the General Assembly `of the commonwealth of Kentucky, that the `Front street in the town of Covington, below Scott `street runs into the Ohio river, preventing thereby `any communication down the bank of said river; `and whereas, it is believed that an alteration in that `part of said town below Scott street, and the alley `running west between Third and Second streets, to `the lower line of said town, thence with said line `to the Ohio river, thence up the Ohio river to Scott `street, would be to the interest of the citizens of `said town. Therefore,

"Be it enacted by the General Assembly of the Commonwealth `of Kentucky, That a majority of the trustees `of said town, with the consent of the owners of `the lots in that part of said town, may make any alteration `in the street or streets, alleys or lots of said `town, as may be agreed upon by and between said `trustees and the owner or owners of said lots, `which alteration shall be signed by a majority of `the trustees of said town, and the owner or owners `of said lots, and certified by the clerk of the board `of trustees of said town to the clerk of the county `court of Campbell county, who shall record the `same. And it shall be the duty, also, of the clerk `of the board of trustees of said town, to record any `such alterations in the record book of the trustees `thereof; which alteration, if made, shall have the `same force and effect as though it formed part of `the original plan of said town.

"Sec. 2. Be it further enacted, That it shall and `may be lawful for the trustees of said town, with `the consent of any owner or owners of any entire `block or half block of lots below Scott street, to `close up any alley or alleys running through the `same: Provided, That the same shall be carried to `the record in the same manner as is provided for in `the preceding section."

The next act is that of January 12, 1829, which is in the following words:

"Whereas, an act passed at the last session of the `General Assembly, approved December 31, 1827, `whereby the trustees of the town of Covington, `in the county of Campbell, were authorized to make `certain alterations and changes in a part of said `town, as to the positions of streets, alleys, and lots `but in said act, when the alterations should be `made, no power was given to the trustees of said `town either to receive or make deeds of conveyance `to carry into complete effect said alterations. To `remedy the defect in said act,

"Sec 1. Be it enacted by the General Assembly of the `Commonwealth of Kentucky, That in all cases where `the trustees have made, or shall hereafter, in pursuance `of the provisions of the said act, make, any `alterations in the streets, alleys and lots of ground, `to make and execute deeds of conveyance to the `person or persons who, by contract, are or may be `entitled to the same; and also, in further fulfillment `of said alterations now made or to be made, accept `and receive deeds of conveyance to them and `their successors in office, which deeds, when made `agreeable to the laws now in force, shall vest the `right, title, and interest of the grantor or grantors, in `the grantee or grantees."

The remaining sections of this act relate to matters not connected with the subject of this controversy.

On the 10th February, 1830, the trustees, and the proprietors of lots lying within the above defined boundary, entered into the following agreement:

"We, the undersigned, trustees of the town of `Covington, and the exclusive proprietors of lots in `that part of said town which lies below Scott street, `and between Third street and the Ohio river, do `hereby assent and agree to the several alterations `and changes represented by the accompanying map `in that part of said town, as made and directed by `said trustees in pursuance to an act of the General `Assembly of Kentucky, approved December 31st, `1829. In witness whereof," &c. (Signed by the trustees and the proprietors.)

The map referred to in this agreement is copied into the record, and is entitled, "a survey and plat of `the alterations and changes of certain streets and alleys `made and agreed upon by the trustees of Covington, `and the proprietors of lots in that part of said `town of Covington which lies below Scott street `and between Third street and the Ohio river, in `pursuance to an act of the General Assembly of `Kentucky, approved December 31st, 1827."

On the 22nd July, 1829, the trustees of Covington executed to Thos. D. Carneal a deed of conveyance in which, after reciting that by the two acts of December, 1827, and January, 1829, they are "authorized `and empowered to make certain changes and `alterations in the streets and alleys of that part of `said town" already described, and that in pursuance of said acts they had "altered, changed, and discontinued `certain streets and alleys in the part of the `town aforesaid," "which said alterations, changes, `and discontinuances will more fully appear by reference `to a plat of the part of the town aforesaid, `and the agreement thereunto annexed — they convey `to Carneal, (for the consideration therein set `forth,) a part of Second street, which had been discontinued; `also a part of certain alleys which had `been discontinued; and, also, all that piece or parcel of `ground lying north and front of the lots of said town, `below Scott street, and between said lots and the Ohio `river through which Front street passes, as designated `and laid down on said original map of said town."

Carneal, on the same day, in consideration of this conveyance, by deed containing substantially the same recitals, conveyed New street to the trustees, by metes and bounds.

On the 10th day of May, 1831, Carneal conveyed by deed to John McNickle, the ancestor of the appellees, certain lots defined by metes and bounds, which embraced the ground in contest.

Such is the title exhibited by the appellees, and relied upon by them as sufficient to defeat the claim of the appellant.

It has been repeatedly decided by this court that the trustees of a town have no authority to alien or convey property of this discription from the uses to which it was dedicated. (Buckner vs Trustees of Augusta, 1 Marsh. 9; 16 B. Mon. 168.) And whether the legislature can constitutionally confer such power is a question which has not been directly or authoritatively decided by this court, although strong intimations are to be found in several cases against the existence of the power In the case of the City of Louisville vs Bank U. S. et al. 3 B. Mon. 157, it is said that the strip of ground between Water street and the river "was intended to be always kept open. `We cannot believe that the legislature of Virginia `ever intended that it should be sold as absolute private `property. Having been once dedicated to `public use the trustees, without legislative authority, `would never have had the power to sell the absolute `title to any portion of it, and had it not been `sold prior to the adoption of our constitution, the `property holders of Louisville would have been protected `in their enjoyments of its easements, even `against legislative power, without making adequate `compensation to them in money." And in the case of Alves, &c. vs Town of...