Holmes v. Cleveland, C. & C.R. Co.

• Decision Date: 17 July 1861
• Citation: 93 F. 100
• Parties: HOLMES et al. v. CLEVELAND, C. & C.R. CO. et al. [1]
• Court: U.S. District Court — Northern District of Ohio

93 F. 100

HOLMES et al. v. CLEVELAND, C. & C.R. CO. et al. ^[1]

United States District Court, N.D. Ohio.

July 17, 1861

Matthew Birchard and Mason & Estep, for plaintiffs.

S. I Andrews & Bishop and Backus & Noble, for defendant Cleveland C. & C.R. Co.

Moses Kelly and Bolton & Griswold, for defendant Cleveland & P.R Co.

Bishop Backus & Noble, S. F. Vinton, and Moses Kelly, for defendants Cleveland & M.R. Co. and Cleveland & T.R. Co.

S. I. Andrews & Bishop and Backus & Noble, for defendant Cleveland, P. & A.R. Co.

McLEAN Circuit Justice.

The complainants claim in this case to be the owners in equity, in common with others, unknown, and too numerous to be made parties if known, of a parcel of land in the city of Cleveland, bounded north by the dividing line between Lake Erie and Canada and the United States, east by Water street in said city, south by the north line of lot 191, and west by the Cuyahoga river as it ran in the year 1796, and by a line from its mouth parallel with the east line. They also allege that said land originally belonged to the stockholders of the Connecticut Land Company, which owned the entire Western Reserve, and that they and their heirs are the representatives of such stockholders, and that the lands of the reserve were conveyed to mere naked trustees for the benefit of such stockholders; that on March 23, 1836, one Thomas Lloyd fraudulently procured a deed from said trustees, conveying the land claimed in this suit, and that defendants are in possession of said lands under a title made from said Lloyd, with notice of the trust and fraud. The prayer of the bill is to set aside said fraudulent deed, dissolve said trust, and have a partition of said land, and an account of the rents and profits thereof received by the defendants.

The defendants insist that the title to all of said land covered by the water of Lake Erie is in the public, and not in any trustee for them; and as to the residue of said land rely for a defense upon the equitable bar furnished by lapse of time, want of title in equity in the complainants, and upon a dedication of said land to the public by the Connecticut Land Company as early as 1796, accepted immediately thereafter, and ever since used in accordance with the purposes of the dedication. They deny that they are in possession under the title derived from said Lloyd, and aver that they are in possession, under the authority of a statute of the state of Ohio, in pursuance of a license granted by the city of Cleveland, and using the same in a manner consistent with the original dedication.

The leading historical facts of this case are believed to be accurately and succinctly stated in the defendants' brief. The Connecticut Land Company was organized in Connecticut in 1795, and became the owner of the Connecticut Western Reserve, and issued to its stockholders certificates of stock for their respective interests therein. This title was made to the state of Connecticut by the United States under the act of April 28, 1800, and was vested in trustees for the purpose of partition and conveyance to purchasers. The company caused all its lands east of the Cuyahoga and the Portage Path to be surveyed into townships in the year 1796, and also selected for sale six townships, including the city plot, which were immediately (except the city plot) surveyed into 100-acre lots, and the whole put in market. In the year 1798, by mutual arrangement between the proprietors of said land company, in pursuance of the original association, partition was made of all the company's lands surveyed as aforesaid except the six townships and the city of Cleveland, and the legal title was secured to the stockholders in severalty. The company, by its agent, continued to control the land in said six townships and the city plot until December, 1802, when, having caused the unsold land thereon to be resurveyed, they in like manner distributed the same among their stockholders, and reserved the legal title to each, and in said partition avowedly included all that remained unsold in said townships and city. In April, 1807, they in like manner divided all their land west of the Cuyahoga and the Portage Path. Soon after this, it was discovered that, by reason of omission in the surveys, a small piece of land, not connected with the city or the six townships, had been omitted, and this, called 'surplus land,' was surveyed into lots in the city and in the six townships which had been under contract, and become forfeited; whereupon, at a meeting of the stockholders of said company, held according to its constitution, at which they were fully represented, on the 4th January, 1809, it was resolved 'that the company divide in severalty among the stockholders all their property, consisting of notes, contracts, bonds, and land, according to their plan of partition previously adopted,' and that the partition made should be conclusive upon the proprietors, and 'no after-allowances claimed on account of any error that may have happened in cost, measure, or otherwise. But said division shall be final, unless further property belonging to the company be discovered. ' The company thereupon proceeded to make the partition, and reserve the title to the stockholders in severalty, as proposed; and thereupon, on the 4th January, 1809, it was voted 'that this meeting be adjourned without day. ' Up to that time the company kept full records of its proceedings, but since which time there never has been a meeting, either of its directors or stockholders, up to the commencement of this suit.

The first plot and survey of the city of Cleveland was made in 1796 by Augustus Porter and Seth Peare, and were the authorized surveyors of the Connecticut Land Company, and who superintended the surveys of the entire reserve east of said Portage Path. This survey is called 'Peare's Survey,' and the original field notes and maps are in evidence. On this map was marked 'Bath Street,' connecting Water street with the river, and bounded north by the lake, and south by lot 191, and varies in width from 80 to 200 feet. In describing the lots east of Water street, the length of the lines above the bank only are given; but on the map they extend to the lake. In March, 1802, the trustees of said land company conveyed three of said lots-- Nos. 1, 2, and 3-- lying next east of Water street to Samuel Huntington, bounding them on the north by the lake. This deed also recognized the lake as the north boundary, and it was also the northern boundary of other lands and lot 191. On December 6, 1800, the territorial legislature of Ohio passed an act entitled 'An act to provide for the recording of town plots,' and in 1801, Turpland Kirtland, being then the agent of the company, undertook to make a plot of said city, to be made, proved, and recorded as required by that act, the effect of which be to vest the streets and other public grounds in trust for the purposes therein expressed. Amis Spafford, a surveyor, made a survey of the city, which he called field notes and minutes of the survey of the outlines, lands, and squares of the city, for the land company, in 1796. Both Peare's and Spafford's plots and surveys-- Peare being the first one-- have been recognized from their origin to the present by the members of said land company, and the map of Peare was regularly recorded on the proper record for Trumbull county by the agent of the company. In the year 1833, River street, being nearly parallel with the river, was opened, and terminated at Bath street, about 140 feet distant from the river; and thereafter the latter was used as a thoroughfare from Water street to the river and the lake.

In 1827, the United States, in improving the harbor, cut a new channel for the mouth of the river, running directly north from a point near the northwest corner of lot 191, and thereby left on the west side of the river a small portion of Bath street,-- perhaps one-eighth of an acre. Immediately after the construction of the harbor the accretion commenced on both sides of the river, and has continued to increase, particularly on the west side, until one-eighth of an acre has increased to seven or eight acres. After a few years the accretion so increased as to prevent the washing of the bank, and it ceased to cave at the intersection of Water and Bath streets, and thereupon, about the year 1830, the corporate authorities repaired said streets, and again opened the connection between them, since which time Bath street has been one of the principal thoroughfares of the city. In 1840, in pursuance of authority given by its charter, the city council caused the exact boundaries and fronts of all the lanes and streets of the Cuyahoga river below Vineyard's Lane to be surveyed and ascertained, of which survey a report was made August 4, 1841, which was accepted, and thereby the city council established the boundaries and fronts of said streets and lanes according to said survey, which designated the entire territory between lot 191 and the lake at Bath street, and fixed its boundaries accordingly. On December 21, 1844, the legislature of Ohio, by statute, authorized the city council to lease any portion of the streets adjacent to the lake and river, needed for public use as docks and wharves, for a term not exceeding 10 years; the rents arising therefrom to be appropriated to the repairs of the streets and of the public wharves. February 4, 1845, a subdivision and plot of the territory called 'Bath Street' east of the river was made, designating for public use certain streets thereon, and also certain lots by number, several of which lots were soon after leased by authority of the city council, under the limitations stated in said statute, and possession was taken by the...