55 Ky. 699 | Ky. Ct. App. | 1855
delivered the opinion of the Court.
In 1785, a patent was granted by the commonwealth of Virginia, to James Taylor, for 1,500 acres of land, at the junction of the Licking and Ohio rivers, lying on both rivers, and above the mouth of Licking. In-1791 and 1792, Hubbard Taylor, son of the patentee, laid off a portion of said land, at the
In September, 1795, there seems to have been a public sale of lots in Newport, made, of course, by the new plat. But how many lots were sold does not appear. And in December, 1795, an act was passed to establish the town of Newport, then included in the county of Campbell. This act vested the “land comprehended in said town, agreeably to a plat made by John Roberts,” with certain exceptions, in certain named trustees; and, besides other provisions for keeping up the town,provided in the seventh-section, “that such part of the said town as lies between the lots and the rivers Ohio and Licking, as-will appear by reference to said plat, shall forever remain for the use and benefit of said town, for a common; reserving to the said James Taylor, his heirs and assigns, every advantage and privilege which he has not disposed of, or which he would by law be entitled to.”
Up to the passage of this act the legal title to all the land “comprehended in said town,” except the few lots which had been effectually conveyed to purchasers, had remained in the original proprietor.— In 1799, James Taylor, the patentee, conveyed to
In 1806 an act was passed, by which, after reciting that the county courts of counties on the Ohio river had, under a previous act, granted ferries across said river — that their authority in such cases had been doubted, and that it was reasonable that the ferries so granted should be confirmed, it was enact•ed that ferries which had been granted in pursuance of the requisitions of said act, be confirmed, provid
In virtue of these grants, the ferry across the Ohio was carried on under the authority, first of James Taylor, of Virginia, and then of James Tajdor, of Campbell county, Kentucky, perhaps from the date of the original grant until the death of the last mentioned James Taylor, in 1848. It had for many years been managed and carried on by his lessees, of whom one was in possession under an unexpired lease at his death. After which, his will being for some time in dispute, a ferry bond was executed by his heirs; and upon the establishment of his will, which authorized his executor to lease the ferry, a bond was executed by the executor, and also by the lessee, Robert Air, under the requisition of the act of 1852. For many years open ferry-boats and skiffs were alone used at this ferry, as at all others in the state. In
In 1830, the trustees of Newport applied to the county court of Campbell county, for the grant of another ferry from Newport, across the Ohio, and upon the refusal of their application they brought the case to this court, by which the judgment of the county court was affirmed. For the reasons of this affirmance, founded mainly upon the construction of the act of 1795 establishing the town, and of the plat therein mentioned, reference is made to the opinion of this court, as reported in 6 /. /. Marshall, 134. When this application for a ferry was rejected, the population of Newport was probably not over 1,000 souls. Afterwards, in 1850, the population having increased to some 6,000 to 8,000, and the town of Newport having been previously incorporated as a city, an application was again made by the city for the grant of a ferry, which was then granted by the county court. But the order making the grant was reversed by this court, on the single ground, that in a proceeding between substantially the same parties, about precisely the same thing, and involving the same questions of construction, without any variation of facts by which that question could be affected, the court felt itself bound by the former adjudication, and especially by the construction which had thereby been given to the act of 1795 establish
In 1853, the steamboat Commodore, of near 200 tons, after having been duly inspected, enrolled and licensed for the coasting trade, by the proper officers of the United States for the collection district of Cincinnati, and those interested in her having obtained, for a nominal consideration, a lease from the city of Newport, of the wharf at the foot of Monmouth street, in said city, commenced carrying passengers and property, regularly and for profit, to and fro, across the Ohio river, in front of the city of Newport, the right to do so being claimed under color of the said license, and of the laws of the United States by which the licensing of steamboats is regulated and authorized. In January, 1854, James Taylor, the son and executor of James Taylor, who died in 1848, together with Robert Air, the lessee of Taylor’s ferry, obtained, upon a bill filed by them, an injunction against this proceeding on the part of the owners and managers of the Commodore, and also of the city of Newport, which they charged to be a violation of the exclusive ferry right, so long held under the laws of Kentucky, in virtue of the grants which have been stated, and which have been sance tioned and protected by the repeated decisions of this court.
The bill claims, in substance, that in making the town of Newport, James Taylor, of Virginia, retained not only the legal title to the strip of land between Front street and the river, but also all rights therein which were not incompatible with the right of common by the citizens of the town ; that the same title and rights were reserved to him by the act of 1795 establishing the town, as construed by this court ip the two cases which have been referred to, and that the same were conveyed by his deed of 1799, to James Taylor, of Kentucky, who held and claimed them until his death, since which they belong to those who are entitled to his estate ; and it is claim
These are in substance the claims and prayers made in the bill, which states with great minuteness and at great length, the acts and tacts supposed to constitute a valid foundation of the rights asserted. The city of Newport and the owners and managers of the Commodore, made defendants, deny the rights and resist the relief claimed by the plaintiffs. The city answering at great length, contests most of the facts and legal inferences relied on in the bill, and, going back to the origin of the town, claims that by the location and plat of the town, showing its position with respect to the river Ohio, and exhibiting an open space between the lots on the Front street and the river, and by the sale and conveyance of lots with reference to that plat, there was a dedication
Upon these grounds, she claims that in whomsoever the legal title to the Esplanade, and the legal right to the ferry, may have been, the equitable and beneficial interest, not only in the Esplanade but in the ferry right, which was incident to it, belonged to the town and afterwards to the .city of Newport. She therefore asks for an account of the profits, as having been received in trust, and for the benefit of Newport. And also for a conveyance of the Esplanade, &c.,upon the same grounds, and upon the additional allegations and facts, that from a very short period after the organization of the town under the act of 1795, it has claimed and exercised undisputed jurisdiction over the esplanade, by extending, and at the cost of thousands of dollars, improving the streets through it down to the river; by protecting the bank from being washed away along a great part of the space in front of the town; by building and using for some years a market-house upon it; by the charge and collection of wharfage at different periods and at present, upon boats landing at the town; by the general and common use by the citizens and others, of the entire front on the river, without let or disturbance, and at their pleasure, for landing boats, for loading and unloading them, for piling and hauling away rock and lumber, and other things, they claim that the entire Esplanade, except so far as it has been used under the ferry right of Taylor, which use has for many years been almost exclusively confined to the landing at the foot of York street, has been in the exclusive possession and use of the town and the city, its inhabitants and the public, as the public ground of the town or city; that especially the landings and wharves at the foot of the several cross streets, improved under the authority and principal
This is the substance of the allegations and claims of the defendants, as presented in their answers to the bill. It appears, however, that after the injunction was issued and served, some change was made in the ownership of the Commodore, and under a ferry license obtained from the city authorities of Cincinnati, she was continued, or was again engaged in the business of transporting passengers and property across the river from Cincinnati to the landing at Monmouth street, in Newport, and was to some, but a more limited extent, engaged in transporting them from Newport to Cincinnati. Upon this being made to appear, a rule was made against the parties engaged, to show cause why they should not be attached for a contempt. No final disposition was
It will be seen from the detailed statement which has been made of the pleadings in this case, and from the decree which has been appealed from, that numerous as the subordinate questions of fact and law may seem to be, they may be reduced to three principal enquiries, relating, first, to the nature and extent under the laws of Kentucky of the ferry privilege, which has been so long exercised under
Before entering upon these enquiries, it is proper to notice two preliminary objections made to the decree, which are, that a court of equity does not, and should not take jurisdiction of this right asserted and the relief sought by the bill, and that if the court may take jurisdiction, there is a want of parties capable of sustaining the bill, and of claiming and receiving the relief prayed for. Upon the first of these objections, it is admitted that the ferry right or privilege is not only a legal but a statutory right, protected by statutory penalties. But the enforcement of these penalties is not the only remedy by which the right may be vindicated. The common law furnishes in addition, the action on the case as a universal remedy for the disturbance of franchises, of which the right of ferrying for toll is certainly one ; and it is difficult to find a good reason why this right made appurtenant to an estate in land, should be excluded from the benefit of the principle that the possession clothed with the title, may be quieted by the decree of a court of equity, against disturbance from adverse claims, or from the other principle, which, even where there has been an actual dis
Other grounds besides that of furnishing a more adequate and complete remedy, and the only effectual one, might be referred to as sustaining the jurisdiction of the court of equity in this case. But whatever may be the theory on the subject, the jurisdiction in similar cases is now too well established in practice, and by reason and precedent to be successfully questioned. It is deemed sufficient to refer in support of this conclusion, to the cases of
Upon the objection with respect to parties, it might be sufficient to say, that we do not perceive that the objection was made in the circuit court. And according to the 123d section of the Code, it comes too late, if made for the first time in this court. But waiving this ground, we aré of opinion that although the grant of a ferry may be regarded to a certain extent as a personal trust, the right during the subsistence of the grant, is transmissible sub modo with the land itself to which it is appurtenant by descent, or devise, or sale, or lease — the consent of the county court having jurisdiction to grant the ferry, being required in case of sale or lease, and a new bond or covenant being required in all cases of a change of title, whether by act of the parties, or by operation of law. These and other regulations on the subject, not necessary to be mentioned, are contained in the Revised Statutes, relating to ferries. But by the will of James Taylor, to whom this ferry was granted in 1807, his son and executor, James Taylor, one of the plaintiffs, was authorized to rent out the ferry, and all other ferries which might be granted during his life, and to receive the proceeds, of which a part is specifically appropriated, and the residue may be subject to account; but there is no direct devise of the ferry itself, nor of the Esplanade, until his death. Such right therefore, as the testator had in the ferry, either descended to his heirs during the life of the executor, who as has been stated, executed bond in the county court, or it vested in the executor dur
Assuming that James Taylor, the testator, was entitled to the ferry under the grant of 1807, and by his long possession afterwards, we are of opinion that his will invests his executors with the substantial rights of a tenant for life, and makes him a devisee for life in trust. He is therefore to be regarded in equity, at least, as a tenant of the free hold, having the right to defend and maintain in that character, and at least to the extent of that interest, the title of which he holds an important portion. And we may here say, that whatever doubts there might be as to the efficacy and intention of the deed of James Taylor, of Virginia, made in 1799, to convey to James Taylor, the testator, any part of the land lying between the lots in the town of Newport and the Ohio river, which is represented in both of the plats, and regarded in the act of 1795, and recognized in the opinion of this court, reported in 6 J. J. Marshall, supra, as a part of the town, there is no doubt of the intention of the grantor to convey the entire ferry right, present and future, from the shore in front of the town, -and from all parts of it. And whether this could or could not have been legally and effectually done, without conveying to the grantee the title to the soil itself, or some part of it, the grantee of that deed, used and held the existing ferry under it until 1807, when the court which had jurisdiction, considering him as having been invested by the deed with the ferry right which had been .granted to his father, and as being therefore entitled to the benefit of the act of 1806, in confirmation of previous grants, established the same ferry in his name, by an order which was in effect a new grant of the privilege to him; and the same ferry has been continually used by him, or under his authority, from that day to this. The transfer of the then existing
We come, then, to the first principal inquiry, what is the nature and extent, under the laws of Kentucky, of the privilege conferred by a grant of the ferry right across the Ohio river, by a county court having jurisdiction to grant it? And in answering this inquiry, we observe that the laws of Kentucky do not profess either to grant, or to secure or protect, the right of ferrying across the Ohio river, except from this to the opposite shore; nor do we find that there has been any attempt, by statute, to regulate or interfere with the transportation from the other side to this, under authority derived from the laws and government on the opposite side. But the right of any state or territory to grant, within its jurisdiction, the right of ferrying across the Ohio, has been uniformly recognized and respected, and, so far as we can discover, never denied. It will be recollected, that in the order of January, 1794, which granted to James Taylor, of Virginia, the first ferry from the town of Newport, he is authorized to charge the same fare that is allowed from the other side. This implies that there was, even then, a ferry from the other side, which, however, does not otherwise appear. It seems, however, that at different times since 1807, and while Taylor’s ferry was in operation, there had been ferries from the other side, which were carried on for short periods, but of which none, so far as appears, was obstructed in bringing passengers, &c., &c., from the other side.
These statutes, and among them the Revised Statutes, which, as we suppose, contains the present law upon the entire subject, sustain fully the proposition first laid down in this part of the case, and establish the fact that Kentucky has never claimed the exclusive right of ferriage across the Ohio river except from this shore, and while she has interdicted the establishment of ferries from this side, within a certain distance of an established ferry on this side, she has constantly recognized the right of the authorities on the other side, to establish ferries from that side, without regard to the interdict. The Revised Statutes prohibits the transportation for reward ■across thé river to or from either shore, within one mile of an established ferry on this side, unless by a ferry established on the other, which may transport to this side, and prohibits such transportation (within the interdicted distance,) from this side without reward, even by a ferry established on the other side. The opposite ferry is thus prohibited from taking ‘passengers, &c., from this side within one mile of an established ferry, whether with or without reward, and all others are prohibited from either taking from this side, or landing upon it, at any point within the interdicted distance, persons or property transported or to be transported for reward across the river. To this extent the state claims jurisdiction, for the protection and preservation of her own established ferries, and by virtue of her sovereignty over her own territory, on' which, in the cases prohibited, persons and property must be landed from, or received for transportation across the river. The
We think it manifest from what has been said, and there are other considerations tending to the same conclusion, that the privilege of ferrying for toll, and especially of ferrying across the Ohio river, which runs between this and other states, is a privilege grantable only by the public, and to be exercised under such regulations as the public may deem requisite for the safety, comfort, and convenience of all concerned; and that it is no less the duty, than the right, of the government which has jurisdiction over ferries, to exercise it with a view to the attainment of these ends. And this brings us to our second inquiry, which is, in substance, whether the license of the Commodore, under the laws of the United States, conferred on her, or her owners, the privilege of transporting persons and property, to and fro, across the Ohio river, between Newport and Cincinnati. If this occupation was not, as it most clearly was, an exercise, or attempted exercise, of the right of ferrying, for toll, across the river, it was a manifest violation of the statutes of Kentucky, unless the license be deemed equivalent to the grant of the ferry privilege from both sides oí the river. But
If, by the operation of this act, every steamboat wdiich receives the license provided for, is thereby authorized to transport persons and property across the Ohio, or any other navigable river, from bank to bank, or from state to state, situated upon the opposite banks, the power of the states to establish and regulate ferries, and to give them the protection required for their beneficial operation, is in effect nul
If it were conceded that the commercial power vested by the constitution in the congress of the United States, might be legitimately exercised in the regulation of ferries transporting persons and commodities across a river flowing between two states, and that where there is a conflict between the regulations enacted by congress, and those of the states, on the same subject, the latter must, under the mandate of the constitution, yield to the former; still, a power of this character, so long exercised without question, not only by this state, but by every other state similarly situated — a power essentially local, and in its immediate operation affecting local interests only — dependent for its judicious exercise upon local knowledge — founded on the jurisdiction and power of the state over its own soil, and the persons and property of its inhabitants, and necessary for the proper exercise of its rights and duties for the protection of its citizens and their property, as well as for the safety and convenience of others passing to and from its territory — a power of this character, whose existence, as a remnant of sovereignty left in the states, is thus sanctioned by time, thus approved-by considerations of fitness, and thus demonstrated by necessity, is entitled to too much respect to be defeated by anything less than an unequivocal assertion, either express or by necessary implication, of the conflicting power, or to any greater extent than such conflicting power is exerted under the clear sanction of the constitution.
If the commercial power vested in congress may be exercised upon every subject, the regulation of
This, as we understand the case of Gibbons vs. Ogden, 9 Wheaton, p. 1, and 5 Condensed Reports, 563, is the doctrine, express and implied, of the opinion of the supreme court of the United States delivered in that case, by the chief justice; and with some differences of opinion among the successive judges of that court as to the extent of the power granted to congress to regulate commerce, and as to the question whether, and how far the grant is exclusive, the same doctrine has been substantially maintained to the present time. In the first place, it is conceded in that opinion that the power of taxation necessarily remaining in the stptes, is shown by the restriction upon it in the second clause of the tenth section of the constitution, to have included, in the opinion of the convention, the power of laying duties on imports and exports, and tonnage duties, although they operate upon commerce. And again, in speaking of inspection laws, which are also recognized by the same clause as being within the power of the states, and which are admitted to have a remote and considerable influence on commerce, though not derived from the power to regulate it, the chief justice says : “They form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to the general government, all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of the state, and those which respect turnpike roads, ferries, &c., are component parts of this mass.” And he proceeds to say: “No direct general power over these objects is granted to congress, and consequently they remain subject to state legislation. If the legislative power of the union can reach them, it must be for national purposes, it must be where the power is expressly given for a special purpose, or is clearly incidental to some
From these general propositions, which, without going into the details of the subject, yet cover the whole ground, it is clearly deducible, that although the commercial power granted to congress may have been considered as embracing the entire subject, and every part of the subject, of commerce between or among the states, there yet remained in the states power over many subjects connected with that commerce, and the regulation of which, by the states, though it might incidentally, and in a greater or less degree, affect that commerce, must prevail until con
If, then, it be true, that the power of congress to regulate commerce among the states, may extend to ^13 regulation of Ferries from the state on one side, to that on the other side of an intervening river, and that the conflicting state laws must yield to such an exercise of the power, it must be admitted that the subject is obviously and peculiarly one of that character which demands such regulation as will meet the local necessities qnd convenience. And that whether tested by the principle of the case referred to *n ^ Peters, or of that in 1'Mh Howard, or by the more general principles of the case of Gibbons vs. Ogden, it is one of those subjects over which the power of the'states, exercised, as it has been, from the beginning, must prevail until the subject is regulated by congress, and except so far as it is so regulated. If the subject of ferries be, to any extent, embraced in the power granted to congress, as to which we do not in this case deem it necessary to inquire, it is certainly one of those contemplated by the opinion of the court in the case of Gibbons vs. Ogden, which can be most advantageously regulated by the states, and over which, no direct power being conferred by congress, if the legislative power of the union can reach
Then the real question in this part of the case is, whether Congress has, to any extent, regulated ferries across the Ohio or any other river, from state to state, and how far, if to any extent, it has regulated or attempted to regulate them ? The' act of 1838, above referred to, is in its descriptive terms of the vessels to which its requisitions of a license and its penalty for navigating without one, apply sufficiently comprehensive to embrace all vessels propelled by steam. But the requisition of the first section, that the owners shall make a new enrollment of the same, under the existing laws, and take out a license, under the conditions now imposed by law, and which shall be imposed by the act itself, seem to imply, that only such vessels as might be required to be enrolled under previous laws, were intended to be embraced in the act. And on this ground, and because the requisitions of the previous laws, referred to, and especially of the. act of 1793, were not deemed applicable to ferry boats, making many trips each day, across a narrow river, Judge Catron, a judge of the supreme court, presiding in the circuit court for Kentucky, in an opinion, of which a manuscript copy is before us, decided that a steam ferry-boat, used for ferrying across the Ohio river, was not intended to be embraced by the act, and that the penalty which it imposes for not having obtained a license, could not be enforced against the owners of such boat. It may be added, as confirmatory of this view of the act of 1838, that some of its own provisions for the safety oí passengers, would seem to be applicable to longer voyages, and scarcely necessary in reference to the short and frequent trips of a ferry-boat. The title of the act also indicates what is notorious in the history of the times, that this action of Congress embracing steam vessels navigating
But if it were conceded that this act, so far as it provides for the safety of passengers, from the dangers of steam, and of fire necessary for its generation, should be deemed applicable to all steamboats, wdiether used for ferrying or for other purposes, it would not follow that Congress intended by this act, to assume the general regulation of ferries, transporting persons and property from state to state, or to regulate their establishment and rights or duties, or to interfere with those already established by the states, any further than to require the inspection, enrollment, and license for which it provides. To say nothing else, the absence of all provision for securing the speedy and regular transportation of persons and property across any river, and for meeting the requirements of travel and trade, in passing from one to the other side, shows conclusively that Congress did not intend, in passing this act, to assume the office of regulating ferries, which had so long been safely and beneficially exercised by the states. If the license required by this act authorizes the owners of the licensed boat to transport persons and property across a river, whenever and wherever, and on such terms as they choose, it authorizes them to violate the rights of individuals; to invade and contemn the jurisdiction and power of the state, and to destroy or impair the efficacy of establishments created and made suitable to meet the exigencies of trade and intercourse between the states, without imposing the plainest and most essential requisitions
Butin addition to the considerations-just mentioned, and to others before noticed, which must have an important bearing, not only upon the question of the extent of the power conferred on Congress, or remaining in the states, but also upon the construction of the acts of Congress in the execution of its power, the act of 1852, entitled, “an act to amend an act, entitled, an act to provide for the better security of the lives of passengers, on board of vessels propelled by steam, and for other purposes,” affords, as we think, conclusive confirmation, if confirmation were necessary, of the opinion that the act of 1838, so far from being intended to regulate ferries, or to authorize any interference with them, under color of the license which it provides for, was, probably, not even intended to apply to steamboats engaged in the business of ferrying. The act of 1852 embraces in substance, the provisions of the previous act, with additional details and requisitions, carried out with great minuteness and precision, and enforced by numerous penalties. It commences by declaring that no license or enrollment shall be granted, under this or the former act, to any vessel propelled, &c., until satisfactory evidence shall be produced, that all the provisions of this act have been complied with; and for non-compliance, the owners and vessel are subjected to the penalties contained in the second section of the former act. As the provisions of this act seem to continue and extend, or enlarge all the provisions of the act of 1838, there seems to be no part of that left in actual force and operation. Then the 42d section of this act of 1852, expressly declares that it shall not apply to steamers used as. ferry-boats.
This opinion having been already extended to an ,-f , . ....... , , . . Unusual length, we shall limit our third inquiry to as brief a space as practicable. The facts relating to the Esplanade and the entire space between the lots in the town of Newport and the Ohio river, have been substantially presented in our preliminary , , r f , statement, and in the statement made of the claims •and pleadings of the parties. The location of the town, the plat made in 1791 or 1792, presenting an open space between the front street and the river, and the re-survey and new plat made in August, 1795, having words written on the open space, indite at in g its appropriation to the public, together with "the sales of lots made under both, before the passage , r ° of the act of 1795, are circumstances which, according to the repeated decisions of this court, would, in the absence of proof to the contrary, suffice to establish a valid dedication of that space, for all the publicuses to which it was appropriate. The reasons given by Hubbard Taylor, the agent of the proprietor, for not laying out that space into streets and alleys, not having been, so far as appears, communi- . , , .7 , , „ , , . cated to the public, or to the purchasers or lots, could not repel the presumptions arising on the face of the plat. And although, before the second plat was r , , A ,,. , „ . , . , L . made, the established ferry might be sufficient to show that the right of ferry was intended to be reserved, there was nothing on that plat to show that anything else was reserved. The claim of the ferry right from the time of its establishment, may have feeetifacquiesced in by the few persons interested, in.
With respect to the title and uses of the Esplanade and entire river front, we should be inclined to the opinion, if it were not for the former decisions on the question, between the same parties or their predecessors, in whose place they stand, that the legal title was vested by the act of 1795, in the trustees, for the general uses of the town and the public, except as to the ferry. But this court having given a different construction to the act, in the first contest between Taylor and the town of Newport; and in the renewed contest of 1850, the court, though dif-. ferently constituted, having regarded that construction as binding upon it, we should not feel at liberty,
It was decided, in the case of Rowan’s executor vs. Portland, 8 B. Monroe, 258, that the ferry right which in that case had been granted to the proprietor of the town, and was in use before the dedication, though attached to a portion of the slip which had been dedicated, was not essential to the public uses of the dedication, and did not necessarily pass, by implication, as a part of it, but was impliedly reserved to the proprietor. And yet, in that cáse all other appropriate uses of the slip, for the purposes of the town and the public, and among them the right of constructing wharves and charging wharfage, were decided to have passed by the dedication. The right of ferry from the slip now in question, or from any convenient part of it, might have been reserved to Taylor, and yet all other rights and uses, not inconsistent with, nor necessary to sustain it, might have been dedicated, either by the plat and sale of lots, or by the statute establishing the town. In the original plat, the dedication was not indicated, and therefore neither restricted nor enlarged, by any written word. The second plat, and the statute founded on and referring to it, calls it a common, or an Esplanade, to remain a common forever. Was the Esplanade to be a common of pasture, a common of piscary, or a common of turbary? Was the Esplanade, one-half of which, or more, was the sterile shore and bank of the river, dedicated forever to this restricted use of a town situated on the bank of a noble river, and seeking and expecting the advantages of that situation? And was not the word “common” understood, and to be understood, not in its technical sense, as being a right or profit which one man may have in the land of another, but in its popular sense, “as a piece of ground left open for common and public use, for the convenience and accommodation of the inhabitants of the town. It was
That the few inhabitants and lot owners might have tacitly conceded such right of ferry, (if there was any,) as they may have been entitled to under the original dedication, if it is not to be implied from the act of 1795, which must have been understood as reserving that right, is to be conclusively implied from
Wherefore, the judgment perpetuating said injunction, and adjudging the exclusive right of ferrying from both sides of the river to be in the plaintiffs, is reversed, and the cause as to that is remanded, with directions to perpetuate the injuction to the extent just indicated, and to adjudge the right as above directed.