City of Covington v. McNickle's Heirs

57 Ky. 262

• Court: Court of Appeals of Kentucky
• Decided: September 30, 1857
• Status: Published

Opinion

Judge Duvall

delivered the opinion of the court.

This was an action of ejectment brought in Sept. 1850, by the City of Covington against the heirs of John McNickle, to recover the possession of a portion of what was claimed by the appellants as a part of the public landing, or wharf, of the city, within the boundary included by the Ohio river on the north, Front street on the south, Scott street on the east, and Madison street on the west. The action was finally tried in the Boone circuit court, having been removed there by change of venue from Kenton county. A verdict and judgment having been rendered against the city, she has prosecuted this appeal.

Two leading questions are presented by the record, and have been elaborately discussed in the re-argument of this case: 1. Have the appellees exhibited a valid legal title to the ground in contest? And 2. If they have not shown a valid title, have they proved such a possession, by themselves, and by those under whom they hold, as to constitute a valid bar to the appellant’s right of entry ?

The town of Covington was originally established by an act of the legislature, approved February 8th, 1815. On the 15th August following, the proprietors of the land on which the town was laid out, caused to be recorded in the clerk’s office of the Campbell county court, a map or plat of the town, from a copy of which it appears that the strip of ground lying between Front street and the Ohio river, of which the ground in controversy is a part, was expressly dedicated as a common, “ for the use and benefit of the said town.” This is so certainly and clearly shown by the plat itself, and by the writing which accompanies and forms a part of it, that no reference need be made to the various cases in which the doctrine of implied dedication has been considered.

The first legislative act which, it is contended, conferred upon the trustees of Covington power to dispose of any part of this common, is the act approved December 31, 1827, and is as follows:

“ Whereas, it is represented to the General As- ‘ sembly of the commonwealth of Kentucky, that the ‘ Front street in the town of Covington, below Scott ‘ street runs into the Ohio river, preventing thereby ‘ any communication down the bank of said river; ‘ and whereas, it is believed that an alteration in that ‘ part of said town below Scott street, and the alley ‘ running west between Third and Second streets, to ‘ the lower line of said town, thence with said line ‘ to the Ohio river, thence up the Ohio river to Scott ‘ street, would be to the interest of the citizens of * said town. Therefore,

“Be it enacted by the General Assembly of the Com- ‘ monwecdth of Kentucky, That a majority of the trus- ‘ tees of said town, with the consent of the owners of «the lots in that part of said town, may make any al- ‘ teration in the street or streets, alleys or lots of said < town, as may be agreed upon by and between said ‘ trustees and the owner or owners of said lots, ‘ which alteration shall be signed by a majority of 1 the trustees of said town, and the owner or owners ‘ of said lots, and certified by the clerk of the board ‘ of trustees of said town to the clerk of the county 1 court of Campbell county, who shall record the ‘ same. And it shall be the duty, also, of the clerk ‘ of the board of trustees of said town, to record any ‘ such alterations in the record book of the trustees ‘ thereof; which alteration, if made, shall have the £ same force and effect as though it formed part of £ the original plan of said town.

“Sec. 2. Be it further enacted, That it shall and £ may be lawful for the trustees of said town, with £ the consent of any owner or owners of any entire £ block or half block of lots below Scott street, to £ close up any alley or alleys running through the £ same: Provided, That the same shall be carried to £ the record in the same manner as is provided for in £ the preceding section.”

The next act is that of January 12,1829, which is in the following words:

“Whereas, an act passed at the last session of the £ General Assembty, approved December 31, 1827, £ whereby the trustees of the town of Covington, £ in the county of Campbell, were authorized to make £ certain alterations and changes in a part of said £ town, as to the positions of streets, alleys, and lots £ but in said act, when the alterations should be £ made, no power was given to the trustees of said £ town either to receive or make deeds of conveyance £ to carry into complete effect said alterations. To £ remedy the defect in said act,

“Sec 1. Be it enacted by the General Assembly of the £ Commonwealth of Kentucky, That in all cases where £ the trustees have made, or shall hereafter, in pur- £ suance of the provisions of the said act, make, any ‘ alterations in the streets, alleys and lots of ground, £ to make and execute deeds of conveyance to the £ person or persons who, by contract, are or may be ‘ entitled to the same; and also, in further fulfillment £ of said alterations now made or to be made, ac- ‘ cept and receive deeds of conveyance to them and ‘ their successors in office, which deeds, when made £ agreeable to the laws now in force, shall vest the £ right, title, and interest of the grantor or grantors, in 1 the grantee or grantees.”

The remaining sections of this act relate to matters not connected with the subject of this controversy.

On the 10th February, 1830, the trustees, and the proprietors of lots lying within the above defined boundary, entered into the following agreement:

“We, the undersigned, trustees of the town of ‘ Covington, and the exclusive proprietors of lots in £ that part of said town which lies below Scott street, ‘ and between Third street and the Ohio river, do ‘ hereby assent and agree to the several alterations £ and changes represented by the accompanying map ‘ in that part of said town, as made and directed by £ said trustees in pursuance to an act of the General £ Assembly of Kentucky, approved December 31st, £ 1829. In witness whereof,” &c. (^Signed, by the trustees and the proprietors.)

The map referred to in this agreement is copied into the record, and is entitled, “a survey and plat of ‘ the alterations and changes of certain streets and al- ‘ leys made and agreed upon by the trustees of Coving- £ ton, and the proprietors of lots in that part of said c town of Covington which lies below Scott street £ and between Third street and the Ohio river, in 1 pursuance to an act of the General Assembly of £ Kentucky, appi’oved December 31st, 1827.”

On the 22nd July, 1829, the trustees of Covington executed to Thos. D. Carneal a deed of conveyance in which, after reciting that by the two acts of December, 1827, and January, 1829, they are “author-1 ized and empowered to make certain changes and ‘ alterations in the streets and alleys of that part of ‘ said town” already described, and that in pursuance of said acts they had “altered, changed, and discon- ‘ tinued certain streets and alleys in the part of the * town aforesaid,” “which said alterations, changes, ! and discontinuances will more fully appear by ref- ‘ erence to a plat of the part of the town aforesaid, ‘ and the agreement thereunto annexed—they con- * vey to Carneal, (for the consideration therein set ‘ forth,) a part of Second street, which had been dis-e continued; also a part of certain alleys which had ( been discontinued; and, also, all that piece or parcel of ‘ ground lying north and front of the lots of said town, ‘ below Scott street, and between said lots and the Ohio i river through which Front street passes, as designated ‘ and laid down on said original map of said town."

'1. Trustees of towns have no power to convey ground which has been dedicated to the use of the public; and whether the legislature can constitutional! y authorize them to do so is questionable. (Louisville vs. Bank ü. S, S¡e., 3 B. Mon. 157; Alves, SfO., vs. Town of Henderson, 16/5. 170; Transylvaniatfniversity vs. City of Lexington,ZB.Monroe, 28.)

Carneal, on the same day, in consideration of this conveyance, by deed containing substantially the same recitals, conveyed New street to the trustees, by metes and bounds.

On the 10th day of May, 1831, Carneal conveyed by deed to John McNickle. the ancestor of the appellees, certain lots defined by metes and bounds, which embraced the ground in contest.

Such is the title exhibited by the appellees, and relied upon by them as sufficient to defeat the claim of the appellant.

It has been repeatedly decided by this court that the trustees of a town have no authority to alien or convey property of this discription from the uses to which it was dedicated. (Buckner vs Trustees of Augusta, 1 Marsh. 9; 16 B. Mon. 168.) And whether the legislature can constitution ally confer such power is a question which has not been directly or authoritatively decided by this court, although strong intimations are to be found in several cases against the existence of the power In the case of the City of Louisville vs Bank U. S. et al. 3 B. Mon. 157, it is said that the strip of ground between Water street and the river “was intended to be always kept open. ‘ We cannot believe that the legislature of Virginia ‘ ever intended that it should be sold as absolute pri- ‘ vate property. Having been once dedicated to ‘ public use the trustees, without legislative authori- ‘ ty, would never have had the power to sell the ab- ‘ solute title to any portion of it, and had it not been 4 sold prior to the adoption of our constitution, the 4 property holders of Louisville would have been pro-4 tected in their enjoyments of its easements, even 4 against legislative power, without making adequate 4 compensation to.them in money.” And in the case of Alves, &c. vs Town of Henderson, 16 B. Mon. 170, it was held, that the act of the legislature, the effect of which was then under consideration, did not profess power to revoke the dedication of a similar slip of ground, “nor was it competent,” says the opinion, “for the legislature to do so, since that would have been taking away the property of the town, and of its citizens.” The case of Transylvania University vs City of Lexington, only settled the principle that the streets of a city are, like other public highways, subject to alteration and even occlusion by the sovereign will for the common weal. And this, upon the ground that the right of an owner of land in a town or city, to the use of the contiguous street, is an appurtenant right, the extent of which depends on circumstances, and cannot, as to each proprietor of ground, be co-extensive with all the streets and alleys of the city. The right to the use of a public common or landing, on the other hand, “belongs 4 equally not only to lot-holders, but to all inhabi4 tants, and to all individuals of the state according 4 to their various necessities or convenience, and it is 4 a right which belongs to future as well as to pres-4 ent lot-holders and inhabitants.” (Alves vs Henderson, supra.)

It is not necessary, however, to our present purpose, to decide this question of legislative power. The proper construction of the two acts of the legislature, under which the power is claimed, and not their validity, is the only point to which our inquiries need be directed.

f 2. In the construct! onof Statutes the general words in one clause may be restrained by the particular words in a subsequent clause of the same statute.

It is insisted, on the part of the appellees, that the preamble of the act of 1827 proves that the portion of the public common which was embraced in the deed to Carneal, was intended to be subjected to the power of alteration, conferred, by that act, upon the trustees; and that the subsequent act of 1829 strengthens and sustains this construction.

The preamble in question sets forth, briefly, the condition of Scott street at that time, the inconvenience resulting from it, and the proposed remedy— consisting of “an alteration in that part of said town, below Scott street,” &c., going on to define the boundary within which the power of alteration was to be exercised. It neither purports to confer authority, or to point out the mode in which it is to be applied. For all this, we are to look to the enacting clause. There we find the power clearly defined and limited. By the first section the trustees are authorized, with the consent of the owners of lots in that part of said town, to make “any alteration in the streets, alleys, or lots of said town, as may be agreed upon,” &c. If the sale or alienation of the public common was intended to be authorized by the legislature w'hy was it not included in this enumeration of the other subjects of the power? The word “common,” as applied to the ground between Front street and the river, had a meaning as definite and as certain and as well understood, as the word street, alley or lot; and the power given the trustees to alter streets, alleys, and lots cannot therefore be construed to comprehend a power to alter or alienate the common.

A well known rule for the construction of statutes, which, though ancient, is always adhered to, is that the general words in one clause of a statute may be restrained by the particular words in a subsequent clause of the same statute. The argument here however is, that the general words, and words of mere description contained in the preamble of the act we are considering, must control the particular wrords and special provisions of the enacting clause.

The subsequent act of 1829 certainly affords no aid to the construction contended for. The preamble of that act recites that by theprovisions ofthe actof 1827, the trustees were authorized to make certain alterations in a part of said town, “as to the position of certain streets, alleys and lots," and the first section provides for the execution of conveyances only in cases where the trustees had made, or should thereafter make alterations in the streets, alleys or lots. The provisions of the two acts are perfect!}' consistent— the one giving the trustees power to alter the streets, lots and alleys, and the other giving them power to convey when such alterations should be made.

The survey and map referred to, fail to show that any alteration whatever was, in point oí fact, made, which involved or affected the public common. Nor does the agreement between the proprietors and the trustees, of which the map and survey constitute a part, contain any thing which indicates that either the one party or the other contemplated the disposition which was made of the common; but the first mention of, or distinct reference made to the slip of ground in contest, is to be found in the conveyance from the trustees to Carneal.

Construing these several acts therefore with reference to each other, and to their subject matter and context, we are satisfied that the legislature intended to confer no power upon the trustees of Covington, by alienation or otherwise, to appropriate to private use, any portion of this slip of ground which had been dedicated to the use, not of the owners of lots contiguous to it only, but to the use of all the inhabitants of the town, and all individuals of the state. The object of the legislature was simply to authorize the remedy of an inconvenience occasioned by the action of the river upon its bank. The remedy was to consist of a change in the position of certain streets, alleys and lots within a defined boundary. To the accomplishment of this purpose, it has not been shown that the exchange or sale of a part of the public landing or common, was either necessary or proper.

It results therefore that the conveyances under which the appellees set up title to the ground in contest, are, to that extent void.

2. We proceed in the next place, briefly to consider the question of possession. It is admitted that the possession of the appellees and of their ancestor is insufficient, and that to make out a bar by 20 years possession, the holding of Carneal, prior to his transfer to McNickle, must be relied on. Upon this point, therefore, the character and extent of Carneal’s possession need alone be inquired into.

What then, was the character and extent of Carneal’s possession of the slip of ground in contest from the date of his purchase to that of his sale to McNickle?

The substance of the proof upon this point is to be found in the testimony of Carneal himself, corroborated in the main, by that of Arnold, and is to this effect: That at the date of the deed from the trustees, Carneal owned all the land on Front street opposite the strip in contest and claimed to low-watermark, that he built a dwelling house and other improvements where he lived, south of Second street; that he was in the habit of landing his skiff on the river shore, and whilst building his house, landed his boats with his timber for building at this point, and by means of skids constructed on the bank, removed the timber from the boats to his building as he used it. That other persons also used the same landing for similar purposes whenever they pleased, but never adversely to him. That he sold his property to McNickle in 1831. These are the only jacts proved which indicate the nature of Carneal’s possession. Was it adverse to the right of the other inhabitants of the town to the use of this ground, and was it such a possession as, if continued for 20 years, would have constituted a bar to the right of the city under the original dedication?

3. The right of the public to ground in a city or town, which has been dedicated to the use of the public, can not be divested by a mere claim of title or possession, “or any thing less than actual private occupancyor ex elusive use, evidenced by an inclosure,and so continued to be held adversely for twenty years before the assertion of the right of the public by suit or action»”

We think not. And this conclusion is sustained no less by considerations of reason and propriety and public policy, than by former adjudications of this court.

In the case of Alves &c. vs. Town of Henderson, 16 B. Monroe, 172, it is said, “that the public right [to the use of a piece of ground in a town or city, which had been dedicated as a common] could not be ousted by a mere claim of title or possession, or by any thing less than an actual private occupancy or' exclusive use, evidenced by inclosure, and that it could not be defeated except by a continued adverse occupancy, or exclusive possession, thus evidenced, during twenty years before the assertion of the public right by suit or action. To this extent only is it-understood that, in the case of Rowan's ex'ors vs. Portland, 8 B. Monroe, 259, the public right was held to be barred by an adverse possession of twenty years.” The facts of the case were briefly these: Alves and others united with him in interest, had conveyed to the citizens of Henderson, about the year 1825, their title to and interest in certain designated lots and streets in the town. In consideration of this conveyance, a number of the citizens and lotholder'sof Henderson, conveyed at the same time to Alves- and others whose- interests he acquired, all the- right, title, and interest of the grantors in and to the ground-lying between Water street and the river, and which had been originally dedicated as a public common. These deeds appear to have been made in compromise of the claim set up by Alves &c., to the property mentioned, all the citizens of the town consenting to it, and this compromise was ratified by an act of the legislature in 1827. Alves claimed to have been-in possession of the ground mentioned for twenty-five years, claiming it as his own under these conveyan.ces, ratified and sanctioned by legislative enactment—the trustees and citizens all acquiescing in and recognizing his title and possession; that the citizens having received his title to a vested interest in the town and having claimed under it ever since, the chancellor could not place the parties in statu quo, and he therefore claimed to be protected in his title and possession. His bill was dismissed however, upon the grounds stated in the above extract from the opinion.

4. When a party claims a possession underavoid conveyance no demand of possession is necessary before suit brought to -recover the .possession. 5. Trustees of a town conveying a .part of the public grounds dedicated to the use of the public, and receiving part of the price, not bound to tender back the price received before suing for the possession of the grounds, whatever they might be bound to do in a court of equity.

This statement of the facts is a sufficient answer to the argument by which the learned counsel undertake to distinguish the case under consideration from that of Alves. The two cases are analogous in every essential particular, and the principle settled in the one is applicable to the other. If the possession of Alves, under the circumstances referred to, was held to be unavailing, that of Carneal must certainly be regarded as equally insufficient, to say the least.

It is furthermore insisted that a previous demand of the possession was necessary to enable the city to maintain the action. We think not. The conveyance from the trustees to Carneal was. not voidable merely, but void, investing the grantee with no title or right whatever, not even that of a tenant, or quasi .tenant, such as is acquired by a parol purchase of land, and a possession under it. In the latter case, the contract is not void under the statute of frauds as expounded by this court in numerous cases, but voidable merely, and for that reason, the vendor is not entitled to the possession until he shall have manifested his election to disaffirm the contract, by a demand of the possession. It is obvious that the principle does not apply to the case of a possession held under a void deed which can have no beneficial operation.

Nor does the fact that the city is in possession of the land conveyed by Carneal as the consideration in .part-of the conveyance from the trustees to him, estop the city from asserting her title to the ground in contest. What weight, if any, this circumstance might be entitled to in a court of equity we do not determine, but it is certainly unavailing in this action, for any purpose. There is perhaps no case to which this principle applies in a court of law except where a party seeks the rescisión of a contract entered into whilst an infant.

We deem it unnecessary to notice the questions made upon the several instructions objected to on both sides, as it is probable that the same or similar questions will not arise upon another trial.

The judgment is therefore reversed, and the cause remanded for a new trial, and for further proceedings not inconsistent with the principles of this opinion.