Kennedy's Heirs v. The Trustees of Covington
| Citation | 38 Ky. 50 |
| Parties | Kennedy's Heirs v. The Trustees of Covington and Others. |
| Decision Date | 23 April 1839 |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR SCOTT COUNTY.
Mr. M C. Johnson, Mr. Chase (of Cincinnati) and Mr. Gaines for appellants.
Mr Owsley and Mr. Robinson for appellees.
on the 10th of December last; but was then suspended, at the instance of counsel, and remained suspended until this day when, some modification having been made in the mandate, the opinion and mandate were made final, as follows:
On the 8th of February, 1815, the town of Covington was established on a hundred and fifty acres of land, on the rivers Ohio and Licking, below their confluence, by an act of the Kentucky Legislature, reciting that Thomas D. Carneal, Richard M. Gano and John S. Gano, the proprietors of the town, and on whose application the act was passed, had bought the land from Thomas Kennedy, and vesting the title in five persons as trustees, with power to sell the lots, as previously laid off, and to convey the titles upon the orders and for the benefit of the proprietors.
The events and acts which gave rise to, and have in influence upon, this controversy.
On the plat of the town, as recorded in August, 1815, there is an endorsement signed by the proprietors and three of the trustees, in these words:
On the 2d of March, 1815, Thomas Kennedy, who owned the hundred and fifty acres bounded by the Licking and Ohio rivers, and on which Covington was established, conveyed to Carneal and R M. and J. S. Gano, his title thereto, for the consideration of fifty thousand dollars, and, at the same time, took a mortgage on some of the lots as designated on the plat and also on the ferry privileges, as a collateral security for thirty four thousand dollars of the price which had not been then paid.
At the first sale of lots on the 20th of March, 1815, the reservation to the proprietors of all ferry rights was published, and every title bond and deed since given or made for a lot in Covington, recited the same reservation.
Afterwards, R. M. Gano conveyed his interest in the town to Bakewell, Page and Bakewell, of Pittsburgh; and subsequently, both R. M. Gano and J. S. Gano having died, Carneal conveyed his interest to the heirs of the latter.
Thomas Kennedy, having obtained, in 1822, the grant of a ferry across the Ohio river, also died, and by his last will bequeathed to his son, Samuel Kennedy, and to a daughter, the debt still due to him from the proprietors of the town.
In June, 1824, pursuant to an order from Bakewell, Page and Bakewell, three of the then trustees of Covington, two of whom had been original trustees, conveyed to the heirs of J. S. Gano, their title to all the ground included within the town limits, between the edge of the bank and low water of the Ohio river; and, in 1827, those heirs conveyed their interest in the same ground to Samuel Kennedy, in payment of fifteen thousand dollars of the original consideration.
In March, 1828, the County Court of Campbell, granted to the trustees of Covington, a ferry across the Ohio, from the town of Covington to that of Cincinnati. Samuel Kennedy, being in court, moved for a continuance, on the ground that his principal counsel was necessarily and unexpectedly absent; but his motion was overruled, and though he seems not to have had time to arrange and exhibit his documents of title to the land between the edge of the bank and the Ohio river, he opposed the grant of ferry privileges to the trustees; and having excepted to all the orders of the Court, appealed to this Court, which dismissed his appeal, because, in the opinion of a majority of the Judges thereof, he had no right to introduce extraneous proof of title, and thus rely on any error in fact not apparent on the record; which did not exhibit evidence of his title, but recited the fact that the County Court had heard satisfactory proof of title in the trustees.
To enjoin the use of the ferry thus granted to the trustees, and to obtain a decree for setting aside the grant, or declaring it void, or for such other relief as he might be entitled to in equity, Samuel Kennedy filed this bill in chancery against the trustees of Covington and other who claimed and used the ferry under him.
Object of the present bill; its dismissal by the court below, and appeal.
But the Circuit Court, upon final hearing on an unusually voluminous record, dismissed the bill absolutely. And that decree is now brought up for our revision.
The counsel for the heirs of Samuel Kennedy--now deceased, who are the appellants, insist that the decree should be reversed on one of the three following grounds: First--because, he being, as they argue that he was, the owner of the landing of the ferry granted to the trustees, and the County Court having legal authority to grant the ferry only to the owner of the land on the river, the grant to the trustees was void; and therefore, the Circuit Court should have enjoined any disturbance of his (now the appellants') ferry right, by the use of the ferry thus illegally granted to the trustees.
The grounds relied on by the appellants, to reverse the decree, and establish their legal right to all the ferry privileges within the town of Covington, or their equitable right to the use and profits derived from them.
Secondly--because the grant of the ferry to the trustees, was obtained surreptitiously, without allowing any opportunity to make preparation for defeating or reversing it; and was, moreover, procured by the casting votes of two magistrates who were personally interested in it, and were, therefore, objected to as Judges in the case; and that therefore, as there was, according to the opinion of a majority of the Judges of this Court, no available remedy by appeal or writ of error, a court of equity should decree a new trial.
Thirdly--because, if Samuel Kennedy did not own the exclusive legal right to the landing, he had the entire and only beneficial right, and was entitled in equity to all ferry privileges and benefits incident thereto; and therefore, he had a right to demand of a court of equity, an enforcement of the alleged trust, and a decree also for damages, or for profits received by the trustees, who, as argued, held the ferry in trust for his use and benefits.
A ferry can be legally granted only to the owner of the soil at the landing. But, as the county courts in granting ferries, decide upon the titles of applicants, and opponents--when the record of a grant recites that the grantee proved his title to the landing, the grant is not void--though erroneous-- because another was in fact the true owner, and the order (unreversed) is conclusive on all who were parties to it. But one who was no party may resist the grant, by appealing to an appropriate forum, and showing his own better title to the land, and consequent right to the franchise.
These propositions will be briefly considered in their numerical order.
First. Although the County Court had no authority to grant a ferry to the trustees unless they held the title to the landing--nevertheless, as it had jurisdiction to grant ferries across the Ohio river, and to decide as to the title of every applicant for such a franchise, and as to that also of any party who might be prejudiced by a grant to another; and as the record of the grant to the trustees recites the fact that the trustees proved title to the landing, it exhibits a case prima facie within the special cognizance of the County Court; and therefore, the order granting the ferry was apparently valid, and should not be deemed void, but erroneous merely, in consequence of the extraneous fact that, in another case, this Court should, upon other and fuller evidence, be of the opinion that the title was not in the trustees, but was in the opposing party. Had Kennedy not been a party in the County Court, he would not have been concluded by the order, and might, therefore, have prevented the enforcement of it, to his prejudice, by showing in an appropriate forum that he, and not the trustees, owned the land, and therefore had the only right to all ferry franchises incident thereto. But having been a party in the County Court, he had no right to controvert the title of the trustees by any original suit.
The granting of a ferry by a county court, is a judicial act--subject to revision in the court of appeals.
For an error of a county court--in refusing to continue a ferry case, or allow time to produce a title--the remedy is by appeal, or w. e. only.
A ferry was established by a county court, when two of the justices by whose votes the order was made, were inhabitants of the town to which the ferry was granted; held that this fact--the interest of those justices being but slight, remote and contingent--is not sufficient to authorize a court of equity to set aside the grant, or compel the grantee to submit to a new trial of the application. Though the grant might be set aside, in equity, upon a bill impeaching it for fraud, if the fraud could be established--which is not done in this case.
It is now too late to deny that in granting ferries, the County Courts act judicially, and that a palpable and pernicious error in establishing or refusing to establish a ferry, may be reversed by this Court.
Second. The refusal by the County Cou...
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