Rowan's Ex'rs v. Town of Portland

• Decision Date: 24 January 1847
• Citation: 47 Ky. 232
• Parties: Rowan's Ex'ors. v. The Town of Portland et al.
• Court: Kentucky Court of Appeals

47 Ky. 232

Rowan's Ex'ors. v. The Town of Portland et al.

Court of Appeals of Kentucky.

January 24, 1847

Towns. Dedications. Public uses. Limitations. Wharfage, &amp c.

ERROR TO THE LOUISVILLE CHANCERY COURT.

Pirtle & Speed, Guthrie, H. Marshall and Thruston for plaintiffs

Loughborough and Duncan for defendants.

OPINION

MARSHALL CHIEF JUSTICE.

Case stated.

GENERAL WILLIAM LYTLE being the proprietor of a tract of land on the Ohio river below and adjoining the present city of Louisville, obtained in 1812, the grant of a ferry from a part of said tract; and in the same year caused a town to be laid off on the adjacent land, of which, under the name of Portland, a map or plan was made under his authority, representing said town, with its streets, alleys, lots, and squares, situated on the bank of the river, and apparently extending to the water. On this plat or plan, water street is represented as of the width of 100 feet, running up and down the river through the whole extent of the town. Other streets of 99 feet in width, run parallel to water street, and at right angles to all of them, the cross streets of equal width, run from the interior, or back line of the town, through the space between water street and the river, and down to the water's edge; and a street of 50 feet in width running around the exterior limits of the town, also terminates above and below at the water. This plat or plan appears to have been deposited for record by the agent of Lytle, in the office of the clerk of the County Court of Jefferson, in April, 1812, where it was in fact recorded.

In 1814, Lytle invited bidders by a public notice, to attend a sale of lots in the town of Portland, to be held on the 2nd day of May, in that year. In the notice of the sale, he represented the town as situated immediately on the bank of the river, and as surpassing other towns on the Ohio in point of trade and as a place of deposit. In a second notice or advertisement for the sale of lots in Portland, to be held on the 27th day of October, 1817, he represented it as situated on the Ohio river, about two miles below Louisville, & c., at the main harbor and anchorage below the Falls. And having in the mean time extended the plan of Portland so as to unite with Louisville and Shippingport, he commended it as likely to become in a few years a great and commercial city.

Prior to this second day of sale, Lytle had caused a second plat or plan of the town to be made, exhibiting the old or lower town as originally laid out, with the alteration presently to be noticed, and also the enlargement, or addition by which it was connected with Louisville. This second plan, with an indorsement on it signed and sealed by Lytle himself, importing that it was to be recorded in the office of the County Court of Jefferson, as and for the plan of the town of Portland, by which all past and future sales, & c., were to be regulated, was by him deposited and acknowledged for record in said office, on the 30th day of June, 1818, and was then recorded.

By the original plan of old, or lower Portland, the cross streets having been extended by lines from water street to the river, these lines, with the intervening line of water street and the river on the opposite side, bounded the spaces between that street and the river, and which were divided from each other by the cross streets. These spaces were not, however, divided like the squares on the other side of water street into smaller lots, but were left entirely free from any sub-division.

In the second plan, which exhibited the original town with the addition there to, the cross streets were not extended by lines running from water street in the old town, or from front street, which was the name of the corresponding street in the new town, to the river; nor were water and front streets limited on the northern or river side, by a continuous and unbroken line, but by a line with breaks or intervals in it opposite and equal to the openings of the cross streets on the other side. By this last and authoritative plan, the space between water street and the river, which in the first plan had been apparently divided by the lines of the cross streets into open squares, each with a front on water street equal to the front of the opposite square, and each running down to the water, was, (with the exception hereafter to be noticed,) left entirely open, without division or discrimination by which the use or purpose, or proprietorship of one part might be distinguished from that of any other.

It appears that but few, not more than six or eight lots, were sold before the alteration and enlargement of the plan of Portland; a good many were sold at the public sale in October, 1817, and a still greater number by private sale about and after that time. It might be presumed that these sales were made by the map or plan of 1817, which was conclusively adopted by Lytle. His indorsement of June, 1818, shows that all sales were to be regulated by that map. So far as he then had title, he had a right to adopt any alteration made by that map to his disadvantage, if there was any such. But it is clearly proved that this map was hung up for public inspection at the time of the sale in October, 1817, and that it was often referred to for explanation, both by the vendor and the purchasers of lots, and that in fact the sales were made with reference to it.

This map, therefore, is to be assumed as the representation of the town in which the lots were sold; and not as a merely verbal, but as a written and recorded representation of its localities and divisions, its streets, alleys, thoroughfares, commons and public grounds, so far as they are indicated by it. In all these respects it is to be regarded as having entered into and formed a part of every contract for the sale of a lot in the town, by its number or position in the plan, and as having been adopted and confirmed by every conveyance of a lot described by similar reference. It is, in fact, identified with the town itself; and every reference to, or recognition of the town, is a recognition of the plan by which its various divisions and the localities and uses of its different parts are identified. It cannot be doubted that every purchaser of a lot according to the plan, acquired an interest in it not only as evidence of the position of his purchase, but as evidence also of the several advantages and privileges pertaining to the town and the lots, as indicated by the plan, and especially as evidence of the localities, divisions and uses of its various parts as therein presented. Nor can it be doubted that in purchasing and paying for his lot, he purchased and paid for, as appurtenant to it, every advantage, privilege and easement which the plan represents as belonging to it as a part, or to its owner as a citizen of the town, and that a conveyance of each lot with reference to the map, or merely as a part of the town, was a conveyance of all these appurtenances as ascertained by the map which is the basis of the town as such, and identified with it. These conveyances, then, in connection with the map, to which they must be understood as referring, whether expressly or not, and the declaration indorsed by Lytle, that all sales were to be regulated by the map, operate as a conclusive grant or covenant securing to the purchasers and to the town, all advantages, privileges and easements appearing by the plan to be appurtenant to the lots or the town, and this without any other aid from parol testimony than is always and necessarily admissible in identifying the subjects and fixing the application of written instruments. The notoriety, actual as well as legal, of the acts involved in the making of a town, the laying out of the town upon the land, the representation of it upon a map open to public inspection, and in this case recorded in the office of public records; the advertisement and sale of lots according to that plan, the conveyance of them by recorded deeds referring to the plan, the subsequent inclosure and improvement of some of them for business or residence, and in fine, the actual existence of a town upon the land, must be considered as giving to the world such notice of the plan to which all of these acts and facts must have reference, as to preclude the possibility of afterwards acquiring from the original proprietor, or of asserting, with a good conscience, any right or interest inconsistent with those which, according to the plan of the town, are appurtenant to the lots, and are, therefore, granted to or held for the lot owners or citizens, and the local or general public.

The proprietor of a town having made and exhibited a plan thereof, and caused it to be posted up on the day of a public sale of lots, accompanied by a written declaration attached thereto, that sales, past and future, were to be regulated and governed by it, is bound, as well as the purchasers of lots, to be governed by such plan in respect to all the advantages and easements, as well as disadvantages arising out of the plan.

The mere laying out of a town upon a man's own land, and by his own private act, and the making and recording of a plan of the town, may not, and as we suppose, do not of themselves, conclude him to any extent. The land notwithstanding these acts, is still his own, and neither any other individual nor the public, have any right to interfere with such use of it as any man may lawfully make of his own. Though he has laid out a town upon the land and upon paper, he is not bound to sell the lots or to make or authorize the making of a town in fact. If he never disposes of a lot or lots, as part of the town, no one has any interest in the town as such, or any right growing out of his acts in relation to...