Trustees of Augusta v. Perkins
| Decision Date | 16 May 1843 |
| Citation | 42 Ky. 437 |
| Court | Kentucky Court of Appeals |
| Parties | Trustees of Augusta <I>vs</I> Perkins. |
APPEAL FROM THE BRACKEN CIRCUIT.
THIS is an appeal from a judgment in favor of the appellee, in an action of ejectment brought by the appellants, for the public square in the Town of Augusta.
Various errors are assigned, preliminary to the consideration of which it will be necessary to advert to the facts as they appeared upon the trial.
In 1797, the County Court of the County of Bracken, on motion of Philip Buckner, the proprietor, condemned six hundred acres of land, by metes and bounds; vested the same in Trustees, and established the Town of Augusta. Francis Wells and six others were appointed Trustees. The town was laid off into lots and streets, with a public square or common in the centre.
In 1805, Philip Buckner, Robert Davis, Martin Marshall, John Marchel, Vachel Wildin, and John Sells, all, except Buckner, being Trustees of Augusta, conveyed, for the nominal consideration of one dollar paid Buckner, to Isaac Day and others, Justices of the County of Bracken, and their successors in office, for and to the use of said County, said public square, or two acres thereof, by metes and bounds, excluding from the described tract the main street or so much thereof as passed through it. The deed of conveyance was, on the day of its date, acknowledged by the Trustees and duly recorded in the office of the Bracken County Court. It does not appear to have been acknowledged by Buckner.
From shortly after the date of this deed the County and Circuit Courts for the County of Bracken were held in buildings upon this public square till 1838. In 1823, a new Court House was erected, and the public ground subsequently enclosed. The new Court House was erected upon and across main street, or what would have been main street, had it been continued on through the public square.
The County Court, by order, in 1813, vested a portion of the ground in the Trustees of Augusta, for the erection of a Market House.
Authority was also given by the Court and appropriations made to sink a well upon the property. The County Jail was also situated upon it. And thus the County Court, from 1805 till 1838, exercised continued and unquestioned control over the public buildings upon the public square. The residue was a common with roads, paths, or walks passing through it in different directions, till it was finally enclosed, about 1823.
The Court House was used by the citizens of Augusta in their elections of Trustees, for public meetings, &c but with the assent, generally, of the person to whose care and keeping the County Court had entrusted it.
In 1838, the seat of justice for the County of Bracken was, by an act of the Legislature of Kentucky, removed from the town of Augusta, and full power and authority were by the same act given to the County Court to make sale, at public auction, to the highest bidder, of the public ground and public buildings thereon, in the Town of Augusta, and upon the payment of the purchase money, the Court were authorized to convey to the purchaser such title as the County Court held to the property. One third of the proceeds of such sale to be ratably divided among the original subscribers of $3000, towards building the Court House upon said public ground, thus authorized to be sold, and the other two thirds to be appropriated in aid of the erection of a new Court House at the place designated for the future seat of justice.
In virtue of this act the County Court appointed a Commissioner to effect the sale. The appellee became the purchaser, and the Justices of the County Court conveyed to him all their interest, right, and title to the public ground embraced in the boundary of the deed of 1805, to the Justices of the County of Bracken, from the Trustees of Augusta, without any reservation or exclusion. The deed was duly acknowledged and the possession of the premises delivered to the appellee, who put his tenants thereon and afterwards claimed to hold the premises exclusively in his own right.
There are three counts in the plaintiff's declaration. The first is upon the demise of "The Trustees of Augusta," without designating their names.
The second upon the demise of Francis Wells and John Bonde, who, it appears, are the only survivors of the original Trustees.
The third is upon the demise of said Wells, and Bonde, and the heirs of all the other original Trustees, they having previouslly departed this life.
Such being the history and facts of the case, the plaintiff, by his counsel, moved the Court to instruct the jury:
1st. That the legal title in the property in dispute is in the lessors of the plaintiff 2d. That the use of the County Court in the property in contest was not incompatible with the rights of the lessors of the plaintiff.
3d. That the deed from the County Court to the defendant, Perkins, did not vest in him the legal title to the property in contest, or to the exclusive use thereof.
4th. That four poles in width through the public square, called main street, did not pass the use to the Justices, in the deed to the County Court Justices, to them for the use of the County.
5th. That five poles on the north end of the public square did not pass, by the deed last mentioned, to said Justices for the use of the County.
The Court refused to give any of these instructions. And whether the Court erred in withholding them, in whole or in part, will be now considered, and as much depends upon the effect of the deed of 1805, from the Trustees to the Justices, that will be first noticed. In reference to that deed the first question is, did it pass the title of the property in contest?
The Town of Augusta was established under the statute of 1796, a general law concerning the establishment of towns, and no doubt can exist that under that act the legal title to the entire tract upon which the town was established, vested in the original Trustees. This question was, in effect, settled by this Court in Trustees of Falmouth vs Horter, (4 Litt. 119.)
If then the title vested in the original Trustees, the next enquiry is, to what extent could they legally dispose of it? They had no authority to sell or convey except what they derived from the statute. That directs them to lay off the land, vested in them, into convenient streets and lots; to dispose of the lots at public auction, and convey them to the purchasers in fee simple, and this was the limit to their authority to sell and convey. By the term lots we think was intended private lots, and by it would not be implied an authority to sell or convey the streets, alleys, or commons. The law does not expressly give authority to the original Trustees to lay off a common or public square, but as to the manner of laying off the town they have a general authority and discretion. They can determine the number and width of the streets and alleys, to suit the convenience of the proprietors of lots and the public, and if, for similar purposes, a common or public square is laid off and reserved, it should not be regarded as an abuse of discretion or as an assumption of authority. Besides it may be presumed that Buckner, the original proprietor, on whose motion his land was condemned, the town established, and Trustees appointed, was consulted and assented to the manner of laying off the town, and the reservation of the common for public use. Such reservations are made for the use, convenience, and ornament of towns and cities, and it would be a rare instance to find a town or city without a public square or common. When the Town of Augusta was laid off and a plat thereof made, the duty and authority of the Trustees were that far functus officio. The streets and alleys and common were thereby, and henceforth, dedicated to the use for which they had been reserved. The Trustees had no authority to convert them to any other use or purpose than was contemplated by the original reservation. Nor had Buckner, the proprietor, any interest or title to the streets and common other than any inhabitant of the town. Reservations thus dedicated to the public use, should be preserved inviolable. But these questions have been settled by this Court.
In Buckner et al. vs Trustees of Augusta, (1 Mar. 9,) this Court decided that a deed by the Trustees for a portion of the street was void. It does not appear that this conveyance was made by the original Trustees, but as the law gave the successors the same authority to convey that the original Trustees had, it follows that the conveyance, if made by the latter, would also have...
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