51 Ky. 538 | Ky. Ct. App. | 1851
delivered the opinion of the Court.
Tins suit in chancery was instituted by the “Town _ __ . r. , TYt.. , . of Newport,” against Samuel Winston and others, as Justices of the County Court of Campbell county, and against Charles J. Helm and others as lessees holding possession of the public buildings erected upon the public square in the town of Newport, under the
Campbell County Court. • The complainant allege^in substance that the public square in the town of Newport was set apart and devoted or dedicated, by the proprietors of the land, to the use of the inhabitants thereof, and of the public generally, at the time the original plan of the town was adopted and a survey and plat thereof was made in Februhry, 1792, by the agent of James Taylor,-- the owner of the land. That on the plat then made, the words “ Public Square,” was, at the time of its execution, written across the group of lots, upon which the public buildings were subsequently erected by the County Court, and hence it is insisted that before the county seat was located at Newport, the title to this public square was vested in the town, or rather that it was legally dedicated to the perpetual use of the inhabitants and public, by the original proprietors.
If the fact as alleged, be conceded that when the agent of the proprietor, originally, in 1792, laid off the town of Newport, he executed a survey thereof, and had a map or diagram prepared, representing the plan of that town, and that the words “Public Square,” was written across the lots in contest, on the map, as exhibited to those who purchased lots: in such case, the right of the town to the continued and perpetual use of the square for public purposes, could not be questioned. The principles approved in the case of the trustees of Augusta vs Perkins, (3 B. Monroe, 440,) of Rowan’s ex’ors. vs Portland, (8 B. Monroe, 249,) of the Trustees of Dover vs Fox, (9 B. Monroe, 200,) and of Wickliffe vs the City of Lexington, (11 B. Monroe, 163,) would be decisive of the question in that aspect of the controversy. But the defendants answer, and admit that a map of the town was executed in February, 1792, yet they deny in very positive terms that the block of lots in question were indicated on the plat or map of the town then executed, as a public square, or that the words “ public square,” were then written on the plat at any place, and they insist that this was not done until 1795, when under the direction of another agent of James Taylor, another survey was made, and a new map executed, on which the words “public square,” were, for the first time, written across the lots in contest, in view of an understanding or agreement between the proprietor’s agent, and the justices of Campbell county, that the county seat should be established at Newport. And it is in proof that a re-survey of the town of Newport was made in August, 1795, by John Roberts, and a new map of the town prepared, showing a considerable extension, of its limits, embracing other blocks of lots and containing two open squares, on one of which is written “Pubr lie Square,” on the other, “Bellvere Square,” without' any lines drawn across them sub-dividing them into> different lots with their numbers written on each, as was done on the plat dated in February, 1792. Th®
It must he conceded that there was a dedication of the square in contest in September, 1795, for public purposes at least, and'in the most solemn and authentic form by which it could be made, to wit; by a deed of conveyance from the proprietor, and that the subse
And upon their abandonment of the square and buildings, then a dedication for public use results by implication in favor of the-«nhabitants of the town of Newport, because, 1st; they have had from the year 1795, if not from before that time, until the attempt of the County Court to make a private appropriation thereof, the public use in common with Campbell county, of the square and public edifices thereon.
2d. Because the lots were sold and purchased in the Town of Newport surrounding the square, and in other parts of the town, upon the implied promise on one side, and faith on the ether, at least from the year 1795, that the public square existed, and should forever continue to exist as such, for the public use and convenience of the town. This view brings the case substantially within the scope of the principles approved in the cases referred to above, and especially in the case of Wicldiffe against the city of Lexington. There áre various untenable grounds assumed in the assignment of errors, and in the argument of counsel, upon which, a reversal of the decree of the Circuit Court is de
Whereupon the decree of the Circuit Court is affirmed.