Conner v. President of New Albany

Holman, J.

There are a variety of grounds assumed for reversing this decree. The most conspicuous of which is the suggestion, that the complainants have shown no right, or title whatever, to any land in New Albany, on the Ohio river, which would entitle them to the establishment of a ferry; and conser quently, could not interfere with Conner’s establishment. The complainants do not claim by virtue of any conveyance, other than the recording of the town plat of New Albany, under the operation of the act of. assembly for recording town plats. The first act on this subject, affecting this case, was approved the 5th of December, 1811 (1). It is, perhaps, under this act that the complainants claim. Although, from the exhibition of the, town plat, it does not appear when it was recorded, yet, as the statutory provisions under which they claim, have remained substantially the same, from the passage of the act of 1811 to the present time, the time when the plat of New Albany was recorded is not material. The first section of this act provides, that the proprietor of any town shall cause a true copy of the plan thereof, with the public ground, streets, lanes, and-alleys, with their width properly marked, to be recorded. The second section enacts, that any grant to the public, grantor purchase to or by any individuals, marked or noted as such^shall be considered as a general warranty to the public, or such individuals, for the uses and purposes intended by the donor. This act may be considered as vesting in the town of New Albany, and consequently in the complainants, as president and-trustees thereof, (they having become incorporated, agreeably to the provisions of the act of assembly on that subject,) all the property granted to them by the original proprietors, and marked as such, on the plan of said town.. On inspecting the plan, or that part of it which borders on the Ohio river, we perceive no special grant whatever designated, corresponding with the claim set up in the complainants’ bill. The gore of land there claimed, is not distinguished from Water street, which runs between the building Jots and the river; and that part of the answer, which denies the existence of any such land, ot|ier than Water street, appears to be correct. Or if there is such land, it has never been granted to the town of JYezo Albany. It appears, therefore, v ry clearly, that the complainants have shown no proper' which they have any title, on the river margin of the to cept what they own in Water street. It becomes, then important inquiry, to know what’property they own street. A public street in a town is a public highway, sition is too universally admitted to require authority to it. A public highway is, then, granted by the original etors, to the town of JYezo Albany, 100 feet wide, running whole length of upper and lower Water streets, by its being designated as a street of that width in the plan of said town by Ihe proprietors, and recorded as such. And this grant of a public highway, is warranted to the grantee, or grantees,.by the operation of the before mentioned act of assembly. But that aci will not authorize us to extend the grant beyond the intention of the grantors. The universal acceptation of the word street, thus used, as being synonymous with a highway, or common thoroughfare, will govern this grant, and fix the purpose for which it was intended. But to whom was this grant made? To the public, or the town of JYezo Albany t If to the town oí JYezo Albany, it should have been so expressed, unless it is here necessarily implied. But no such necessary implication arises; for that which is granted to JYezo Albany cannot be public, in the unqualified sense of the*word; nor can that which is granted to the public., be in any sense the exclusive property of JYezo Albany. A grant of a public street or highway, through either town or country, cannot be considered otherwise than as a grant to the public. It confers no exclusive right; but, exvi termini, absolutely excludes the idea of private appropriation. From these premises the conclusion is unavoidable, that the complainants have no exclusive property in Water street. But even if it should be admitted, that the grant of mis street was made to the complainants, for the sole use of the town as such, it will not alter this case in their favour. A way, whether public or private, whethér shsied a road, or a street, leading through town or country, il'hn incorporeal hereditament. It is not the land, nor an unqualified use of it, but a privilege of passing over it. If then, the citizens of New Albany, under the direction of the complainants, enjoyed this right, or privilege, exclusively, it would not give the rigljt of soil they contend for in their bill, nor confer such a right of property as would enable them to ob-the establishment of a ferry, under the laws of this state; laws contemplate an ownership of land as an absolute uisite.

Nelson, Hurst, and 'Moore, for the plaintiff.

Dewey and Raymond, for the defendants.

~ct providing for the incorporation of towns, approved f January, 1817, section 8, gives the president and trusa town, thus incorporated, the authority to keep the in repair, remove nuisances, &c. (2). But this power, aly to the 13th section of that act, is limited to the build-lots, in said town, beyond which bounds, it appears, the ferry of Conner is_ established. But if he, in the use of his ferry, or otherwise, should obstruct the said street, within the bounds of the corporation, they have a right to take such measures, consistent with the law's regulating highways, as will secure them in the full enjoyment of their privilege in said street. But the pow'ers thus granted to them, could not possibly authorize such proceedings as the present. Nor is this right of an exclusive ferry, or any right of ferrying whatever, necessary for enabling them to carry into full effect all their corporate powers; nor do they stand in need of extraordinary aid, in securing the full, free, and uninterrupted enjoyment of their streets, lanes, and alleys, as contemplated by the several acts of assembly on the subject.

Thus, it appears, that in what position soever we place this case, it devests the complainants of all claim to the interference of a Court of Chancery in their favour, either by enjoining, or in any way interfering with the ferry of Conner. Nor is it material, in this case, whether Conner’s ferry was established with, or without authority, or whether it was ever established at. all.

Per Curiam.

The decree is reversed and the bill dismissed, with costs.

(1) Ind. Terr. Stat. 1811, p. 8. — Acc. Ind. Stat. 1823, p.412.

(2) Ind. Stat. 1816, p. 125. — Vide Ind. Stat. 1823, p. 414.