Trustees of Dover v. Fox

48 Ky. 200 | Ky. Ct. App. | 1848

Judge Bkeck

'delivered llie opinion of the Court.

In 1846, the County Court of Mason, upon the ¡application of W. PI. Parker and four others, as trustees ■of the'town-of Dover, in said county, granted 'to them a license to keep a ferry from the landing on the Ohio river, infront-of said town, to the opposite shore of the river.

Arthur Fox, being a party to the proceeding, resisted the application, upon the ground that he was the owner of the legal title to the landing at which the ferry was sought to be 'established, and from the order granting the-license, appealed to the Circuit Court. That Court reversed the -order of the County Court, and the trustees have brought the case to this Court for revision.

Whether the trustees, or the town of Dover, were such owners of the landing In front of the town on the river-, as entitled them to the ferry franchise, is the main question for determination.

It appears that in 1818, the defendant, Fox sold to Murphey, Waters and Duke, three-fourths of fifty acres of land, Fox being at the time the owner, -and having the legal title, and upon this fifty acres, the four imme■diately proceeded to lay off the town of Dover into lots, streets and alleys. They made a plat of town, which was 'exhibited at the sale of lots, which took place shortly afterwards, upon which all the space between the lots fronting the river, and the water’s edge or the river, is represented as Water street. And it is from this space the license to keep a ferry was granted. The agreement between Fox, Murphey, Waters and Duke, for the sale of the three-fourths of the fifty acres, ¡stipulates that it was to bind on the river. The auctioneer at. the original sale of lots, announced at the tíme, in the presence of the proprietors, that the ground fronting on the river was for the benefit of the town— and there is proof that it has since been so used, and so expressly recognized by Pox.

Dedications of land for public use may be % parol. (6 Pet., 431,; 3 B. Mon., 437,; 8 lb., 232.)

That a dedication of land for public purposes may be made by parol, is the well settled doctrine. It was so held in the City of Cincinnati vs White’s lessee, (6 Peters, 431; Barclay, &c. vs Howell’s lessee, (Ibid, 728;) Trustees of Augusta vs Perkins, (3 B. Monroe, 437;) Rowan’s ex’rs. vs The Town of Partland, (8 B. Monroe, 232,) and other cases.

These authorities also fully sustain the position, that from the facts of this case, the strip of land in question constituted a part of the town, and was dedicated to the use of the town of Dover. The mere naked fee or title, may remain in the proprietor, Fox, but if so, it is in trust for the uses to which the dedication was made, and could not be rendered available by him in any form of action, as held in the Cincinnati case, supra, to disturb the beneficiaries in the use and enjoyment thereof. He has ceased to be the owner of the property, and it would not revert to him, even if appropriated by the town to purposes different from those to which it had been dedicated: Barclay and Howell, supra.

By an act of the Legislature, passed in 1836, the town was' established upon the place formed and laid down by Fox and others, proprietors thereof, in 1818.

In the state of case thus presented, the question arises, whether the trustees were entitled to the license for a ferry, granted by the County Court.

The statute authorizes ferries to be established upon the application of persons owning the land on either side of the river, &c. It does not satisfactorily appear that the legal title to the land upon which the town of Dover was established, ever vested in the trustees, the plaintiffs in error, or any of their predecessors. It was not conveyed to trustees, when the town was founded by the original proprietors, nor does the act of the Legislature, although'it appoints trustees, in express terms vest in them the legal title. But whether so or not, in view of the disposition of the case before us, is not deemed material. The town of Dover, or the inhabitants thereof, are the owners, the beneficial proprietors of the common or vacant ground in question. The legal title, if it never vested in the trustees, remains in the original proprietor, Fox, in naked trust for the sole and exclusive use and benefit of the town.

to^Lw^borping on a navigable water couise, is propth^trustees^f^ Though the legal callymay remain etoíoí^a town to streets, yet he is but a trustee lor the benefit of the town, and the trustees of the thsTuse controls McGlung and Taylor for plaintiffs ; Hard for defendant.

It was held by this Court, in Kennedy's heirs vs Covington, (8 Dana, 53,) that a ferry franchise was properiy granted to the trustees of Covington, and that it J ° , , ° . . was not material whether the legal title was m them or their predecessors, the original trustees. The distinction between that case and this, is not deemed very important. In that case, the title had been expressly vested and remained in the original trustees or their hed’s. In this case, the original proprietor is the trustee, and the title remains in him. The title in each case . r • , . , ... is held in trust lor precisely the same or similar tases j &nd.purposeS.

Our conclusion, therefore, is that the inhabitants of Dover, being the beneficial proprietors of the ground in this case, in effect the owners* their duly elected trustees were entitled to make application for the feny franchise, and that it was properly granted by the County Court. The fact, that at an election subsequent to the application, two of the applicants were not reelected trustees, is not considered material. The grant was to them as trustees, and will be so held for the use of the town, and the ferry will be under the control of the trustees for the time being.

Wherefore, the judgment of the Circuit-Court is reversed, and the cause remanded, with directions to affirm the order of the County Court granting the ferry license.