
    City of Newport, &c. vs. Taylor’s Ex’rs.
    APPEAL FROM CAMPBELL CIRCUIT.
    1. The right of holding a ferry and its privilege of conveying passengers for toll, is a franchise in which the chancellor may protect the person in possession, not only by affording redress for the past, but to restrain its repeated disturbance; especially if the right has been judicially established. (9 John. Rep., 585.)
    2. An executor, who by will was directed to lease out a ferry, and could without uniting the heirs of the testator, maintain a petition in equity to be quieted in the enjoyment of the franchise
    
      3. The laws of Kentucky only profess to grant the privilege to ferry keepers, to convey passengers &c. to the opposite side of the Ohio river ; and the same power and right is accorded to Ohio State, and to land at any public landing or wharf, or on private property, by leave to do so.
    4. The power of Congress to regulate commerce between the States, does not interfere with the right of the States to legislate on questions which concern its own particular interests and those of its citizens, as in ferries, &c., where Congress has not legislated. (12 Howard, 318.)
    5. The power of the States to regulate ferries, and grant ferry privileges to their own citizens, where a navigable stream divides two States, cannot be questioned; at least unless Congress shall legislate upon the particular question.
    6. The act of Congress of 1793 and 1838, or 1852, requiring steamboats to obtain license, &c., does not apply to ferry boats. No intention has boon manifested by Congress to assume the control of ferries, or the legislation of the States on that subject.
    7. A steam ferry boat acting under a license obtained under the act of Congress on this subject, had no right in virtue of such license, to interfere with the ferry privileges of the appellees, held under the State authority.
    8. A plan of a town laid out upon a navigable river, with a space shown upon the plat between the lots and the river, indicating its appropriation to public use; and a sale of lost under such a plat, are circumstances which in the absence of contradictory evidence which show a dedication of such space to public use. Though the establishment by the proprietor of a ferry upon that space would be sufficient to show a reservation of his right, to the extent of the uninterrupted and ezclusive use for that purpose. And after an acquiescence in such claim for more than thirty years, cannot be questioned. (8 B. Monroe, 258.)
    9. The dedication of land by a proprietor, of lands laid out as a town, on a navigable river, to be a common, confers the right on the public authorities of the town to build wharfs and charge wharfage.
    10. A license under the U. States to a coasting vessel, confers no right to transport passengers from one side to the other of the Ohio as a ferry boat, and no authority to transport passengers from the Kentucky to the Ohio side of the river Ohio, without a license from the authorities of Kentucky.
    The facts of the case are fully set out in the opinion of the court. — Rep.
    
      Root ¿f Webster for appellants—
    The main questions involved in this case may be stated as follows:
    1. The right of Newport to the “esplanade,” or strip of ground between the lots in said town and the river, and the uses and benefits thereof, and herein of the right to wharfage.
    2. The l'ight of the city of Newport to the benefit of the profits of the ferry run by Taylor from said strip of ground.
    3. Are the claims of the appellants barred by former adjudications?
    4. The right to navigate the Ohio river between Newport, in the State of Kentucky, and Cincinnati, in the State of Ohio, and to engage in the trade and commerce between those points under a license from the United States to carry on the coasting trade.
    Before discussing these propositions, we call the attention of the court to the preliminary question as to the jurisdiction of a court of equity in this case, Which is denied.
    Courts of equity have no jurisdiction where the remedy is complete at law. Where the law affords complete redress, a court of equity will not interfere to prevent an injury. It is only where the wrong is irreparable that chancery will interpose to prevent it. (1 Marsh., 554; lb. 70, and 480 ; 2 lb. 232.) A doubtful right must be established at law, before equity will enjoin. (3 Monroe, 428.) Bill dismissed because the remedy was at law. (4 Bibb., 323 ; lb. 236.) The chancellor will not wrest the subject from the common law judge to enlarge his own jurisdiction. (2 /. J. Marsh., 12.) The chancellor may interfere to prevent the erection of that which will be productive of great injury — serious and irreparable injury; it will arrest the injury because the matter cannot be tried at law, and the party would be without remedy. (4 Bar. Har. Eq. Dig., 83 ; 4 Men. Man., 474 ; Att'y Geni vs. Hunter, Dev. Eq., 12.) The chancellor refused to interfere to prevent the erection of abridge before final hearing, both parties claiming legal right. (Charles River Bridge vs. Warren Bridge, 6 Pick., 376.) An injunction refused to secure a claim to a statute privilege, if the right be doubtfnl. (Steamboat Go. vs. Livingston, 3 Cowan, 713; 
      Hart vs. Mayor of Albany, 3 Paige, 212 ; 6 John. Ch’y. Rep., 19; Corporation of New York vs. Mapes, 6 John. Ch’y Rep., 46; 6 Sim. 297; 4 May ¿y Craig, 487.)
    The plaintiffs have two remedies at law, one statutory, to recover $16 for each time the defendants shall transport any person or thing from Newport to Cincinnati. (Rev. Stat., p. 360, sec. 14.) The other by action on the case, which latter is the general remedy for disturbing a party in the enjoyment of a franchise or easement. (1 Chitty, 163 , 2 Star. Ev., 911 ed. of 1837.)
    This is a contest between the plaintiff Taylor and the city of Newport, and without any trial at law settlingthelegal right, and the city being in the possession and enjoyment &c., and having long enjoyed it, the plaintiff seeks to enjoin and restrain that use and enjoyment by injunction.
    The circuit court rightfully dismissed the petition. But to the main questions, and, 1st. The right of Newport to the “explanade” or the slip of ground between the city and the river.
    This ground we insist was dedicated to the city, as the facts appearing in the record will clearly demonstrate. When taken in connection with the case of (Cincinnati vs. White’s lessee, 6 Peters 435; Rowan’s Ex’rs vs. the town of Portland, 8 B. Mon., 241; Giltner vs. Trustees of Carrolton; 7 lb., 689; 8 Dana 61.)
    The court is referred to the 1st, 5th and 7th sections of an act of the legislature of Kentucky, passed on the 14th of December, 1795, which purports to vest the lots in trustees, and reserve to the proprietor, James Taylor, the patentee, certain exceptions. The exceptions are as follows: “Except such parts as are hereinafter expressly excepted.” Meaning evidently, such parts of the ground comprehended in the said town, as are thereinafter excepted, which excepted parts are not vested in the trustees.
    It has been argued that this exception applies to that part between the lots and the river, designated as the “esplanade,” but clearly this cannot be so.— The exception is in the plural; it speaks of several parts, or more than one. It clearly refers to lots sold, and some of which had been deeded to the purchasers before the passage of the act as mentioned by section 5. Such lots were beyond the control of the proprietor of the town, and the legislature had no power to vest the title in trustees without the consent of the owners, and as they had been conveyed there was no propriety in vesting the title in trustees. Another reason why the exception named in the first section does not apply to the seventh, is, that only one part of the town is mentioned in the seventh section. The language is, “that such part — not parts — of said town as lies between the lots and the rivers Ohio and Licking, as will appear by reference to said plat.” The “esplanade” is a unit, it does not consist of several parts as is represented in said section, as will appear by reference to the plat. This act was but confirmatory of what had been done by the proprietor of the town, so far as the town and local public had acquired rights in the town and public grounds, as shown on the face of the plat; and as to the “esplanade,” it is expressly declared that it shall remain for the use and benefit of the town for a common.
    
    Those rights were not then for the first time vested in the town, but had been previously dedicated to public use, and were so to remain; reserving, however, to the proprietor every advantage and privilege which he had not disposed of, or to which he would by law be entitled. Said act was evidently passed at the instance of the agent of the original proprietor, and as a grant and as confirmatory of an implied grant of rights to the local public, is to be taken most strictly against the grantor, a,nd any reservation inconsistent with the grant itself is void. What advantage then was not disposed of? What advantage and privilege was James Taylor entitled to at the time of the passage of this act? We say he parted with every beneficial use in the “esplanade,” and it had become the absolute property of the town of Newport by dedication to the use and benefit of the local public; nothing remained to be reserved ; he held the mere naked title, and that he held in trust for the common benefit of the town. The plat had been filed for record before the act passed, as the act recites, and copies are filed in the record. The proprietor had lost all power over the dedicated grounds (8 B. Mon., 247,) and the authorities there cited.— Also, (9 Ben. Mon., 211; 11. lb., 163 ; 6 Pet., 728.) “ That a dedication of land for public purposes may be made by parol is a well settled doctrine.” (9 B. Mon., 201; 6 Pet., 431, 723 ; 8 B. Mon.) “The location of a town on a navigable river is for the benefit of the river as a highway, and any space between the streets and the waters’ edge, is presumably dedicated to the public as a common for public use.
    The dedication having been made and proved by the map, and the sales and conveyance of the lots with reference to it, did not require a subsequent use to prove. (8 B. Mon., 249-50.) But the facts in the case clearly show that the trustees and authorities of the town have exercised authority over the ground called the “esplanade,” for thirty, or perhaps fifty years ; making large improvements, wharfs, &c., and preserve the banks from washing away; and collecting wharfage, &c.
    It is insisted that the right of the town to the wharfage is clear. See the Act of February, 24, 1834.
    The right of ferry is grantable by public authority only; standing upon different ground from that of charging and collecting wharfage. (4 B. Mon., 258.)
    We now come to the second proposition.
    The right of the city of Newport to the benefit and profits of the ferry run by the plaintiff from the strip of ground between the town and the river Ohio. The grounds on which it is claimed have been stated. We are aware that since the act of 1806, this court has ruled that such grants are confined to those holding the title to the soil. And as the act of 1795, heretofore referred to, reserved the legal title in the proprietor to the “Esplanade,” if anything, the only grant made to him after the jurisdiction was conferred upon the county courts, was the grant of 1807, when he held the legal title in trust only, upon which the grant was grafted, and he held it for the use and benefit of the town; and it is insisted that the use by the trustee of the trust property for any length of time, should not create a right in the trustee, to the prejudice of the right of the city.
    3. Are the claims of the defendants barred by former adjudication ? It is not supposed that the decision of this court, in the case of The Trustees of Newport vs. James Taylor, decided June 1831, and reported 6 J. J. Marshall, 136, is decisive of the question now presented. The whole question presented in that case, was the right of the Trustees of Newport to a grant of a ferry from the strip of ground between the town and the river, called the “Esplanade.” No question of the right to wharfage; no question of the equitable right of the town to the use and benefit of the ferry run by Taylor, could have been decided in that case so as to bind the parties. These questions were not made or decided. That was an appeal from the county court, which had no equitable jurisdiction. It was a legal question under the statute, an exparte proceeding, quasi in rem, operating as constructive notice to all persons who claimed the lands. (5 Dana, 102.) And there were but two questions to be inquired of by the court, on the application of the trustees of Newport for the grant of ferry privileges. 1. Is the proposed ferry necessary for the wants of the public ? 2. Is the applicant for the grant the holder of the legal title to the land, from which the ferry is proposed to be established? It may appear that the court took a wider range in the .discussion of these questions, than was necessary to their decision. So in the case of The City of Newport vs. Taylor, 10 B. Monroe, 361, decided in 1850. But it is believed that the questions now presented were not then before the court. The questions then adjudicated were purely of a legal character, whether Taylor or the trustees had the legal title to the land ; if Taylor had it the trustees could not have the ferry. The record in the first case was imperfect, and the court had not all the facts connected with the establishment of the town. The parties seem to have gone no further back than the act of 1795, and upon such state of facts the court decided ; but that act refers back and confirms what had been previously done, which, when shown, throws light upon the questions now presented. With all due respect to that court we think it erred.
    4. The fourth and last point, is the right to navigate the Ohio between Newport, in the state of Kentucky, and Cincinnati, in the state of Ohio, and to engage in the trade and commerce between those points, under a license from the authorities of the United States of America, to carry on the coasting trade.
    The plaintiffs claim an exclusive privilege to transport persons and property over the Ohio river from Newport to Cincinnati, under the laws of Kentucky; and the defendants, the owners of the steamer Commodore, claiming to act under the authority of the United States, deny that exclusive right or monopoly in the plaintiffs.
    Upon what do the plaintiffs base their claim ? The deed of 1799, conveying the remainder of the tract of 1500 acres of land, upon which Newport is situated, does not convey any land in Newport. The boundary given expressly excludes Newport. All that the deed purports to pass is “all right and title which the said James Taylor, the elder, now has, or is entitled to, in and to any ferries from the said town of Newport,” &c. The legal title to the “Esplanade,” was not conveyed by the proprietor to those under whom plaintiffs claim, it descended to the heirs, and the record does not show who are the heirs. Nor can it be said that the attempted conveyance of the ferry passed the legal title by implication, because the deed is very specific, and yet does not convey the title. Secondly; because there was no general law at the date of the grant by the Mason county court, (29th January, 1794,) authorizing the county courts to grant ferries in any case, and that court had no jurisdiction, and therefore the grant was void. (2 J. J. Marshall, 226.) The first act giving the county court such power, was in 1796, and went into operation 1st March, 1797J (Slat. Law, vol. 1, 706,) and that act did not apply to the Ohio river. The first act giving power to county courts to grant ferries on the Ohio, passed Dec. 22, 1806. (Slat. Law, 709.) J. Taylor’s grant in 1794 was a nullity. A ferry privilege is not thesubject of a positive grant from one person to another. The granting or withholding the privilege oí a ferry is at the disposal of the government, and cannot be demanded as a matter of right, even by the owner of the soil; (6 J. J. Marshall, 143,) nor can one having the right grant it to another. (3 J. J. Marshall, 669.) There could be no grant of the “Esplanade,” as it had been dedicated, and with the knowledge of James Taylor, and by it he was bound. By the dedication, the proprietor lost all control whatever over the ground, except to hold the legal title as trustee for the beneficiaries; he could make no conveyance to their prejudice.
    2. The plaintiffs show no actual grant of a ferry right to themselves. The record shows an order of the Campbell county court of 1848, directing the heirs of Gen. James Taylor, by name, and the husbands of the females to enter into bonds under the ferry law. If that order is equivalent to the grant of a ferry, then said heirs are necessary parties to this suit; if that order is not the grant of a ferry, then there is no ferry privilege. Taylor shows no grant of a ferry to him as executor.
    
      There is no devise in the will of Gen. Jas. Taylor, of the “Esplanade,” to the plaintiffs, or either of them. James Taylor is only a trustee to rent out the ferry. The will shows certain remainder men that are necessary parties to a suit to settle the rights therein. The decree injoining the running of the Commodore, is erroneous for a want of parties.
    The owners of the Commodore contend that the Ohio river is a great national highway, that it is an “inland sea,” and the commerce and navigation thereof subject to the laws of the United States; that by section 8, subdivision 3, of the constitution of the United States, Congress has power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes ; and by subdivision eighteen, Congress has power “to make all laws which shall be necessary and proper to carry into execution the foregoing powers,” &c. The supreme court of the United States declares that the power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the severed states, and includes the power to regulate navigation, (Gibbons vs. Ogden, 9 Wheat., 1 to 216.) The only exceptions stated by the court, relate tosíate inspection laws — laws for regulating the interned commerce of the states — and those with respect to turnpike roads, ferries, &c. The exception of ferries, is claimed to apply to ferries on the Ohio river ; this is not admitted. The court speaks of the internal commerce of a state alone, placing ferries in the same category with turnpike roads. We grant that ferries wholly within a state, where both banks of the stream are within the state, may be within the exception, and the ferry wholly regulated by the state, but the Ohio lies between two states, and the commerce thereon is regulated by Congress, and that Kentucky has no right to establish an exclusive monopoly of the navigation of the Ohio from the Kentucky shore, for a certain distance up and down the river. The free ¡navigation of the Ohio was declared before Kentucky was a state. By the ordinance of the 3d July, 1787, for the government of the temtory of the United States north-west of the Ohio river, it is expressly declared, that the “navigable waters leading into the Mississippi and the St. Lawrence rivers, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of said temtory as to the citizens of the United States, and those of any other state that may be admitted into the confederacy, without any tax imposed, or duty therefor.” By the compact with Virginia, see. 11, “The use and navigation of the river Ohio, shall be free and common to the citizens of the United States, and the respective jurisdictions of this commonwealth, (Virginia and the proposed state of Kentucky,) on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of said river.” This compact was adopted by the old constitution of Kentucky, article 6, section 9, also by the present constitution, art. 8, sec. 9.
    In the case of Arnold Parent vs. Shields, 5 Dana, 22, this court used the following language, in reference to the compact with Virginia: “Jurisdiction, unqualified being, as it is, the sovereign authority to make, decide on, and execute laws, a concurrence of jurisdiction, therefore, must entitle Indiana to as much power — legislative, judicial, and executive — as that possessed by Kentucky, over so much of the Ohio river as flows between them; and consequently neither of them can, consistently with the compact, exercise any authority over their common river, so as to destroy, or impair, or obstruct the concurrent rights of the other.”
    The commerce between Ohio and Kentucky, at the point between Newport and Cincinnati, is shown to be very great, and the “Esplanade” on one side, and a corresponding point on the Ohio side, a common place of landing for all boats and water crafts, and roads made thereon from various points of the “Esplanade.”
    It appeal’s that the Commodore is a regularly equipped, inspected, enrolled and licensed steamboat under the laws of the United States, manned by licensed officers; and that she is engaged in the commerce and carrying trade on the Ohio river, between the states of Kentucky and Ohio, and to and from the public landing at Newport.
    Of what avail is a license from the United States to run a boat, and engage in the commerce between the states, or among the states, if it is not a sufficient authority to run a boat, and carry freight and passengers, and it be subject to be defeated by a monopoly, granted by a state bordering on the river, to one or more persons, and allowing them the exclusive use of this trade? The United States may be, in this way, defeated in the exercise of its constitutional powers.
    The supreme court said, (5 Howard, 465,) “the act of July 7th, 1838, in all its provisions is obligatory upon the owners and masters oí the steamers navigating the waters of the United States, whether navigating on waters within a state, or between states, or waters running from one state into another, or on the coast of the United States, between the ports of the same or different states.” In a later case, speaking of the jurisdiction of the United States government over the navigable waters of the west, the supreme court of the United States said : “That equality does not exist if the commerce on the lakes, and on the navigable waters of the west, are deprived of the benefit of the same courts, and the same jurisdiction for its protection, which the constitution secures to the states bordering on the Atlantic.” (12 Howard, 454.)
    “The act of congress of the 26th February, 1845, (5 Stat. at large, 726,) extending the jurisdiction of the district courts to certain cases upon the lakes, and navigable waters connecting the same, is consistent with the constitution of the United States.”
    “The admiralty and maritime jurisdiction granted to the federal government by the constitution of the United States, is not limited to tide waters, but extends to all public navigable lakes and rivers, where commerce is carried on between different states, or with a foreign nation.” (12 Howard, 443.)
    In the case of Fretz, dye. vs Bull, dye., (12 Howard, 466,) the extent of the admiralty and maritime jurisdiction of the United States is again affirmed. In another case, (7 Howard, 401,) the court said : “Commerce includes an exchange of commodities, navigation and intercourse.” “That the transportation of passengers is a part of the commerce, is not an open question.”
    Again: State of Pennsylvania, óyc. vs. Wheeling Bridge Co., (13 Howard, 519;) “The Ohio is a navigable stream, subject to the commercial power of congress.” “Congress has sanctioned the compact made between Virginia and Kentucky, to-wit, that the use and navigation of the river Ohio, so far as the territory of Virginia or Kentucky is concerned, shall be free and common to the citizens of the United States. This compact is obligatory, and can be carried out by this court.” (/¿.)
    The plaintiffs claim the exclusive right to transport, passengers, &c., from the Kentucky shore, including the whole front of the city of Newport, a distance of. more than one mile, to the Ohio shore, and we suppose they also claim the prohibited distance above and below the ferry ground, as established by law. The decree of the circuit court fairly recognizes their right to transport persons and property from the slip of ground called the “Esplanade;” and goes farther, and prohibits the defendants, and all others claiming under them, from transporting on the Commodore, or any other vessel, any person or thing, from the Ohio shore, and landing on the said “Esplanade” in Newport, and declares that transportation from the Ohio shore, and landing on said ground, will be deemed a violation of the ferry franchise of the plaintiffs.
    We think the court misconceived the extent of the plaintiffs’ ferry franchise. They do not claim that the grant gives them an exclusive right both from the Kentucky to the Ohio shore, and from the Ohio to the Kentucky shore. The injunction is broader than the claim of the plaintiffs; moreover, if they had claimed that their grant was thus extensive, there is no right shown to sustain such claim. Kentucky cannot grant an exclusive privilege to transport persons and property from Ohio to Kentucky, across the Ohio river.
    If the object of plaintiffs be their own personal emolument, and not in good faith to carry out a trust duty, their claim is entitled to but little favor from the chancellor.
    The attention of the court is called to the following points:
    1. The commerce upon the Ohio has been long regulated by congress. (13 Howard, 561.)
    2. The Virginia compact has become the law of the United States. (Ib., 556.)
    3. No state can obstruct the free use of a license granted by an act of congress. (Ib., 556 to 579-80.)
    4. The act of congress gives to vessels licensed, and enrolled, the right to navigate the public waters, and any state law conflicting with that right is void. The right extends to entering creeks and rivers. (Ib., 586.)
    5. A dedication of ground to public use, cannot be defeated, even by the building a custom house thereon, (10 Peters, 716,) nor can such be defeated even by king or government.
    
      Henry Stansberry on the same side—
    The decree, from which this appeal is taken, was rendered as of the June term, 1854, of Campbell circuit court, and is, in substance, as follows :
    1. Defendants (other than corporation of city) perpetually injoined from landing Commodore, or any other boat, at the Esplanade, for the purpose of landing, or receiving persons or property ferried from, or to the opposite shore.
    2. That as to all the defendants, it is adjudged that the entire privilege and franchise of ferrying persons and property to and from said Esplanade, is in the plaintiffs alone.
    3. That the receiving persons or property on any boat, at the Esplanade, to be transported to the opposite shore, and the landing of persons and property at said Esplanade, from, any boat, from the opposite shore, is an infringement of the ferry license of plaintiffs, and is perpetually injoined against the defendants, and all persons claiming under them.
    4. Account directed as to monies received by defendants for such transportation to and from the Esplanade.
    5. Plaintiffs’ claim for wharfage dismissed.
    6. Counter claim of city for profits of ferry, and for legal title to Esplanade, and of other defendants for damages, dismissed.
    We claim that the decree is erroneous, and make the following points :
    1. That there is a defect of jurisdiction.
    2. That there is a defect of parties.
    3. That the ferry right, if one exists, is confined in extent to one landing, which is at the foot of York street, and to the transportation of persons and proty only one way — that is, from Newport to Cincinnati - — in both which particulars the decree is erroneous and excessive.
    4. That the only colorable right which can be set up by the plaintiffs to any part of the Esplanade, or public landing, at Newport, is confined to so much of it as is incident to, and is necessary for, the ferry —that is, so much of it as may be required for a convenient place of landing — and that all the residue of the Esplanade has been well dedicated to public
    
      5. That as to the right to a place of landing, as incident to the ferry, that right only exists as a legal right, in virtue of the grant of the ferry franchise, which right in fact belonged to Newport in 1794, when it was first granted to James Taylor, of Virginia, and has since been continued in the original grantee and his grantees, contrary to equity, and ought not to be enforced by equitable relief.
    6. That the right set up by the defendants to use the public landing at Newport, in the navigation across the Ohio river, under a coasting license from the United States, cannot be defeated by any exclusive grant set up by the plaintiffs under the laws of Kentucky.
    
      Deject of jurisdiction.
    
    The right set up is to an exclusive ferry grant from Newport across the Ohio, and the relief sought is by perpetual injunction, and by a decree quieting the title forever.
    The case is not of such a character as to authorize such extraordinary relief. A ferry in Kentucky has always been a franchise, grantable by the commonwealth, to an individual, for the public benefit. There is no such thing as a right at common law, in Kentucky, to a ferry, as an incident to the ownership of the land. The grant is a trust, revocable at the pleasure of the state. There is no such thing as a vested right or estate in the franchise; it may be wholly destroyed by the grant of a bridge, or another ferry, at the same place; the grant is only exclusive so long as it is made so by statute. The statutes which create this franchise provide a remedy, and a very ample one, for every infringement. The rule is, that where a right is created by statute, and at the same time a remedy is given for its protection, resort cannot be had to any other remedy than the one so given. (Almy vs. Harris, 5 Johns. Law Rep., 175.)
    
      
      Defect of Parties.
    
    The plaintiffs are James Taylor, as executor of James Taylor, sr , and Robert Air.
    The right set up is to a ferry across the Ohio river from Newport, and to the entire Esplanade of Newport, as a landing. It is claimed that both rights are exclusive, and extraordinary relief is asked, in respect to both, by injunction, to be made perpetual by a decree settling the title, and an account of ferry fees and wharfage.
    These are the rights setup by the plaintiffs.
    Both these rights are claimed by the plaintiffs under James Taylor, sr., — by James Taylor, jr., as his executor, under the provisions of the will, and by the plaintiff Air, as lessee of the executor.
    
      The ferry.
    
    It is claimed that the testator was the owner of the fee in front of Newport, and that, as such, held a ferry grant from the county court at the time of his death ; that the testator died in 1848, and by his will directs his executor to rent his ferries during the executor’s life, and after the death of the executor, the ferries, with the Esplanade, are devised to the testator’s four children for life, and then to their children.
    It is further alledged, that after testator’s death, at December term, 1848, of Campbell county court, and during a contest of the will, the ferry privilege was granted by the court to the four children of testator and the husbands of the three daughters, who gave bond, but never took possession. Air was then in possession under a lease from testator.
    That on 1st April, 1853, Taylor, as executor, made a new lease to Air for six years.
    That Taylor’s executor, and Air, have each given ferry bonds, and Airis now in possession.
    The will of Taylor is made an exhibit.
    The provisions of the will touching the ferry are found in sections 16 and 17. It appears that a distinction is made in the will between the rents of the ferry, and the ferry and the Esplanade — for the rents are devised to the children on one contingency, that is, the death of the widow, and the ferry and Esplanade are devised to them on another contingency —the death of James.
    There is a meaning in this distinction, for the ferry ownership may be in one, and the right to receive the rents in another. So the grant or franchise of the ferry may be in one, and the ownership of the land in another. This would happen upon a recovery in ejectment, or sale on execution, of the land at a ferry, after the grant. The franchise would not pass upon such recovery or sale, but would remain in the original grantee.
    We find, then, by the terms of this will, that so far as the executor is concerned, the only devise to him, as such, is a power to rent the ferry, and to receive the rents during the life of the widow, and to satisfy out of them the charge of $1,200 per year, and to accumulate the residue for distribution among the children after the death of the widow.
    In view of the Kentucky decisions, and the statutary provisions on the subject of ferries, the following rules may be laid down :
    1. That by statute, not at common law, the right to have a ferry grant on the Ohio river, is in the owner of the land.
    2. Before the grant is made, this proprietary right passes by descent, or sale, as an incident to the land.
    3. The grant, though made originally to the owner of the land, is in the nature of a personal trust. (5 Monroe, 140.) It does not pass to the plaintiff, after a recovery in ejectment of the locus in quo. (LittelPs Select Gases, 184.) Nor, on sale of the land on execution. On a sale of the ferry grant by the owner, or on a lease of same for a term of years, or on a devise of the ferry grant, or in case of descent, the franchise does not pass, except by leave of court, and new bonds, amounting, in effect, to a renewal of the grant.
    
      On the death of Taylor, there being no devise, either of the fee or of the ferry grant, to the executor, the grant, or rather the right to renew it, passed to the children, either as heirs or devisees.
    It is averred in the petition that the ferry grant was made to the children, and that they gave bond.
    This invested them with the grant, and they stand as the actual owners oí the ferry, notwithstanding they have not taken possession.
    Subsequent thereto, it appears that at March and April terms, 1853, the executor gave a ferry bond (!), and Air also, the executor having leased to him for six years from April 1, 1853.
    Although the grant was to the heirs, the executor (perhaps) might lease the ferry, with leave of the court.
    We have, then, only the executor with a bare power to lease and receive the rents ; and the lessee for six years. The owners of the ferry grant, as well as of the fee, not in the record. This is fatal.
    All parties in interest must be made parties, by the Code as well as before.
    Here the question is as to the very right, the grant, its validity, an interference which, it is said, will destroy it, a claim to settle it forever, and yet the owners not parties!
    
      The Esplanade — defect of parties.
    
    The bill alledges—
    That the legal title was never granted to the town, but it was laid out for a common, reserving grantor’s rights therein, and has been occupied by him and his grantees, adversely, for sixty years.
    That it passed by deed, in 1799, to J. Taylor, the son of proprietor.
    That he owned it at his death.
    That since his death it has been held by the executor ! and the lessee !
    That trustees have leased part of it, at foot of Monmouth street, to the other defendants, who are running a ferry thereto, to the total destruction of one 
      of the plaintiff’s right to the landing, and exclusive ferry franchise, and of Air’s lease.
    
      Landing at Monmouth street is included in lease.
    One square from Air’s landing!
    
      Prayer.
    
    1. Account for use of landing.
    2. For ferry receipts.
    3. Injunction from running.
    4. That lease be cancelled.
    5. That rights of plaintiffs to landing, and ferry franchise, be quieted.
    This bill traces the legal title to the testator, but no further.
    The will does not vest it in executor, but under the term esplanade it is devised to the four children for life, and remainder to their children.
    As this litigation touches it, and an antagonist claim, the tenants for life, At least, must be parties.
    But in point of fact, if the legal title or fee in the esplanade did not pass out of Taylor, of Va., to the town or the trustees, then it is now in his heirs. It was not included in his deed to his son, Gen’l Taylor, of Newport, made in 1799. See that deed. Extent of the Ferry.
    
    The plaintiffs’ claim is to an exclusive right not only to a ferry, with one landing at York street, but as incident thereto to the entire Esplanade, and all the landings, including the improved landings at all the streets; and the decree sanctions this claim in its fullest extent.
    We maintain—
    1. That if there is a ferry right in the plaintiffs, either by grant or reservation, it is limited as to the privilege of landing, to one place, and that place is the mouth of York street.
    2. That this right or franchise, is limited to the right of carrying persons and property from the Kentucky shore to the opposite shore, and does not include the right or franchise of transporting persons or property from the opposite shore to the Kentucky side.
    
      1. As to the landing—
    It is of the essence of a ferry that it should have two landings — one on each side of the stream, or water — and only one on each side, which must be well defined. The idea of a ferry without a fixed, defined place of landing; of a ferry with a multiplicity of landings, extending indefinitely along a river coast or shore, is wholly inconsistent with public convenience, and with positive regulations.
    It must be located either by the grant, or by user under the grant. There must be a notorious place where the public are to embark, or to land, without the inconvenience of following it, or being transported by it along an indefinite coast, or at various points within a definite limit, and such landing must be kept in repair. (Skit. 362, sec. 22.) Besides this, there mast be a defined landing; a fixed point, to comply with the statutory regulations.
    (1.) That the point mustbe fixed in order to measure the prohibited distance for another ferry, in a straight line, one and a half miles on the Ohio, or four hundred yards, at a town.
    (2.) In order to ascertain the distance in view of statutory penalties.
    The landing of Taylor’s ferry is at the north of York street, and no other landing can be adopted except from temporary necessity, as in case of low water. Taylor’s right in the Esplanade, is therefore limited to a ferry landing, at that point.
    
      The original grant in 1794 — “from his lands on the Ohio, over the same, in front of the town of Newport.”
    
      The grant in 1807 — “in front of Newport, across the Ohio to the opposite shore.”
    Neither of these orders fixes the landing, any further than it is to be established in front of Newport. We must therefore look for the location as established, or used under the grant. The evidence is abundant, that for the last twenty-five or thirty years, York street has beén the landing; occasionally interrupted by extreme low water, when the landing was at a bar about one hundred yards from the shore, and above the original front of Newport.
    Besides this, Ta3rlor has repeatedly defined and limited his landing to one point, which was the foot of York street.
    (1.) Lease to Geo. W. Doxon, in 1835, of the ferry “from his (Taylor’s) landing.”
    Doxon to run a steam ferry boat from “the landing in front of Newport.”
    If a new ferry is ordered by court, above or below the present landing, Doxon to provide boats for it.
    If court give another ferry at Newport to any one else — rent to be abated.
    Doxon to keep the landing of the ferry, or ferries, in good repair.
    Similar provisions in lease of 1838.
    In addition to all this, the exclusive right of the town to all the residue of the Esplanade, and to all the other landings at the foot of the other streets, is clear.
    1. By the original dedication, the only reservation pretended, is to a ferry privilege, and that must be construed to extend only to one landing, as only one is necessary or proper.
    
      2. By continued possession b3!' the town, and acts of ownership.
    
      Order by trustees for running streets to river in 1796.
    Market-house 1812.
    Improvement of landings since 1820, and expenditures.
    
    Charge of wharfage in 1840.
    3. Ferry only from Newport.
    Kentucky has never assumed to grant a ferry from Ohio, and has not ever granted a ferry across the Ohio, except for transportation from Kentucky.
    All the grants to Taylor, have expressly been for a ferry across the Ohio from Newport. That is the limit of his franchise, and nothing farther could have been granted to him, under the ferry law.
    As he never had the right to have a ferry from the Ohio side, or to transport for hire persons or property from Ohio, no exercise of that right by others can be considered an infringement of his franchise, or be held in any possible way to interfere with his rights, or diminish his profits.
    It is a rule as to franchises, that they are to be strictly construed, being exclusive of public rights, and that nothing passes as incident to them, by implication.
    It would seem that a penalty is provided in the 14th section of the ferry act, in favor of the owner of a ferry even on the Ohio river, against any one, other than the owner of a ferry on the Ohio side, for .transporting any person or thing from Ohio to Kentucky, within one mile of the Kentucky ferry, for hire.
    So far as this section applies to transportation across the Ohio from, Kentucky, there is reason for the provision, and for the penalty given to the Kentncky ferry; but so far as it applies to transportation from Ohio, it is impossible to imagine a reason for it, or why damages so severe should be given to the owner of the Kentucky ferry, for an act which does not interfere with his rights, or diminish his profits. A reasonable construction would probably hold, that notwithstanding the letter of the section, the penalty was not intended to cover such an act, and that the penalty should be restricted to the right, or rather to an invasion of the right. But if not; if the letter should be too clear; if the penalty must be enforced, then we say the remedy must be confined to the penalty, and that it would be monstrous injustice to extend the section beyond the statute, in equity, by injunction or otherwise.
    It will be seen that the decree perpetually enjoins the defendants from landing any person or thing at any part of the esplanade, which has been transported from the opposite shore, and such transportation and landing of persons or things, is declared to be an invasion of the ferry frahchise granted by Kentucky to the plaintiffs. Surely it is not necessary to argue this point further. The error of the decree is too manifest.
    4 and 5. These points maybe considered together; they affirm that the whole esplanade, or the open ground now called the esplanade, was well dedicated to public use, without any reservation ; that the only colorable right which can be set up to any part of it by the plaintiffs, is confined to what is necessary to the ferry — that is, a reasonable landing place — which restricted right is a mere legal right, wrongfully obtained in 1794, and since maintained contrary to equity, and therefore not to be enforced by equitable relief.
    It is impossible, within the limits of an ordinary brief, to state all the facts and grounds upon which we rely to support the above positions. All we can do, is to give a a general outline of them.
    We say the entire river front, without any reservation, was dedicated to public use, by the laying out of the town, and the sale of lots it 1792, 1793, and 1794.
    The town is a river town. It is described in the original plat as situated at the confluence of the Ohio and Licking rivers. Along the Ohio river in front of the river tier of lots, and between them and the river, was a narrow, irregular, margin of river bank. On the original plat appeared a line — either continuous or broken — traversing this margin, parallel to the river tier of lots, and about sixty feet distant from them. Between this line and the river nothing was written —no number, no subdivision — not a word to indicate private property, ferry right, or any other reservation. It was left to speak for itself, and we think it spoke a very plain language. “This narrow strip of river shore is most convenient and necessary for the use of this town, it is better, therefore, to leave it open and public, for the use of the town and the public gen-orally, than to sell it to individuals, or to reserve it for the use of the proprietor.”
    
      Res ipsa loquitur.
    
    Now at the time of this dedication there was no such thing as a ferry right incident to the ownership of lands situate on the Ohio river, and no ferry had then been granted to Taylor or any one else from this shore. There was no right of ferry either in posse or in esse, and therefore no foundation to presume the reservation of such a right.
    Next in order was the re-survey and new plat made in 1795. On this newplat the line is abolished, the entire front is left open, and upon it, as a unit, is written, “the Esplanade to remain common forever.” This is a very emphatic declaration of the intention as to this front, from the beginning — that it was all common ground — that the original line which traversed it longitudinally, meant nothing, and was therefore omitted on this new plat, and that the whole open space was to remain public ground forever.
    After this comes the act of the general assembly of December, 1795.
    The court will at once see, upon looking into this act, that it does not profess to interfere with any lights. It gives no new rights, it vests no new estate. It simply excepts from the grant to the trustees, whatever had not been disposed of. It is in the' nature of a saving, and applies to the past.
    If Taylor had not dedicated this ground to the public, then the act saves it to him, just because it had not been disposed of; or if Taylor had specially reserved the ferry right, then, too, the act would save it for him, but not otherwise. To make this act operative as a saving to Taylor, it must appear that the particular thing sought to be brought within it, had not been disposed of.
    I admit that the case in 6 J. J. Marshall, and the one which followed it in 11 B. Monroe, proceed upon the ground that the ferry right was well:reserved to Taylor but those decisions cannot apply to the facts now before the court. They proceed upon errors of fact, and omissions of fact, which entirely destroy their weight in this case.
    One important error is, that a ferry had been granted to Taylor, prior to the establishment of the town. Whereas, the town was established in 1792, and the first ferry was granted in 1794.
    Another error is, in supposing that the deed of 1799 specifically conveyed the land, or Esplanade, as well as the ferry.
    The idea that these decisions, made in a summary proceeding, contrary to the course of the common law, settle forever the question of title in the locus in quo, that they bar an inquiry into title in subsequent litigation, and have even a greater effect than a recovery in an ejectment; this idea is certainly erroneous. They settle nothing but the legal right to keep the ferry, and that is shown by the grant of the county court, which cannot be impeached collaterally. But such a grant does not conclude as in this case — a case in which not merely the grant is relied on — but a title antecedent to the grant, in which the plaintiffs do not appear simply as ferrymen, but as owners of the fee, and in which they ask to be confirmed, not merely in the grant, or in the exercise of the franchise — but also in the pre-existing right, not merely in the temporary license, but in the permanent property.
    As to the alledged long possession, and to the aid of the statute of limitation, these do not help the case.
    The entire possession has been incident to the ferry. It is not in any sense an adverse possession. The plaintiffs entered and have enjoyed in virtue of a license from the public, and can therefore assert no rights as acquired by such possession.
    6. The remaining point is one of great consequence, but we are compelled, for want of time, to confine ourselves to a statement of the grounds on which we rely, and a citation of authorities.
    
      1. Our steamboat, being of a tonage of more than 100 tons, engaged in the transportation of persons and property from Ohio to Kentucky, across the Ohio river, was engaged in commerce between the states.
    
      2. As such boat, engaged in such commerce, and having complied with the laws of the United States,by taking out a coasting license, she was authorized to land at the public landing of Newport.
    3. No state, under its ferry law's, or any other police authority, can ‘perpetually exclude the landing of a vessel carrying on commerce between the states, and having a license from the United States.
    4. The exclusion in this case, against bringing persons or freight/rare Ohio, and delivering persons and freight at a public landing in Kentucky, is in no sense a ferry regulation of Kentucky, for Kentucky never has attempted to grant or regulate a ferry from Ohio.
    5. We admit that certain police regulations, which affect commerce among the states, may be established by each state for itself, such as quarantine, pilot, and wharf regulations, but these cannot extend so far as to authorize exclusive grants or monopolies, or to prohibit altogether and under all circumstances, the landing of a vessel engaged in such commerce. (See Gibbons vs. Ogden, 9 Wheat., 1; 7 Howard, 400, 430,473; 12 Howard. 455.) “Vessels engaged in the coasting trade on the sea coast or on a navigable river, including ferry boats, as well as all other vessels, must be enrolled and licensed.” (Benedict's Admiralty, 123 ; lb. 114, 115.)
    
      J. W. Stevenson for appellees—
    The questions presented in this record are not difficult or numerous. They are, however, interesting and important. Upon the part of the appellees it is maintained:
    1. That the strip of ground in front of the town of Newport, never was public property. That no dedication of it was made, by the plat of 1792, or that of 1795 ; and that the legal title thereto, was never divested out of the patentee, or those claiming under him, by either of said plats, or in any other mode.
    2. That by the act of the legislature of Kentucky, approved 14th of December, 1795, incorporating the town of Newport, all rights, advantages, and privileges in and to said strip of ground, not inconsistent with a right of common on the part of the inhabitants of Newport to said ground, were, by the express terms of said act, secured and reserved to Jas. Taylor, and among such rights, were the exclusive ferry franchise, wharfage, &c.
    3. That this court having twice adjudicated upon said act of 1795, between the town and city of Newport, and said James Taylor, and such judicial construction of said act and the respective rights of said parties, thereunder, as to this slip of ground, and the exclusive ferry franchise therefrom; the attempted claim on the part of the defendants, to a ferry, is now res adjudícala, — said decisions being a bar upon the city of Newport, and all claiming under them.
    4. That the continued adverse uninterrupted use by James Taylor, of said slip of ground, and the running* of the ferry therefrom for fifty-six years, and the acquiescence of said town and city, in such use and possession, by Taylor and those claiming under him, with full knowledge of his claim, would have freed said strip of ground from its supposed dedication to public use, in 1792, if any had existed, and become re-invested in Taylor, as private property.
    5. That the statutes of Jientueky, regulating ferries, and requiring grantees of such franchises to be the owners of the soil, when granted, on the Ohio river, are not regulations of commerce, but a legitimate exercise of state sovereignty, wholly witbjn the territory of the commonwealth of Kentucky, never surrendered to the general government, not inconsistent with the statute of the federal government, and are in all respects, constitutional and valid.
    
      6. That the statutes of Kentucky, regulating ferries within the commonwealth of Kentucky, on the Ohio river, are internal police regulations, not restrictive of, or inconsistent with, the right of a free navigation of the Ohio river, as secured under the compact between Virginia and Kentucky, and in no way interferes with the intercourse between the states of the confederacy.
    7. That the license set up by the defendants, under the authority of the United States, as an enrolled vessel, employed in the coasting trade, under the act of Congress, confers no authority upon them, to establish a ferry on the land of Taylor, wholly within the commonwealth of Kentucky, against his consent, and without grant from the proper legal authority in this state; and that any such attempted construction of said statute, is a palpable perversion of its true meaning and object, and would be unconstitutional and void.
    I. The first question presented, is: was there an express or implied dedication of the slip of ground in front of the town of Newport, by the laying out of that town, by the plat of 1792?
    A careful examination of the bill, exhibits, and answers, in this cause, will abundantly show, that no such dedication was either expressly or impliedly made, and none contemplated.
    There is not a particle of proof in this record, going to show that there was any express dedication of this slip, in 1792. There is no endorsement on the plat evidencing such a dedication, and no parol proof has been offered, going to show such intention upon the part of the patentee, James Taylor, of Virginia, or his attorney in fact, Hubbard Taylor, who was the sole agent employed in laying out the town, in 1792. It is to be remarked, that the plat of 1792, did not include this strip of ground, nor was any part of this slip of ground now in controversy, either surveyed or included in the plat of the town, made by Hubbard Taylor, in 1792. No part of it was laid off into streets, or lots. The streets, as laid down on said plat, in 1792, terminated at Front street. There is nothing in the conditions attached to said plat, and no endorsement thereon, expressive of the slightest intention that the ground between the northern boundary of Front street and the Ohio river, was intended by the proprietor or his agent, as public ground, or for the public use. The northern boundary of Front street was the northern limit of the town, as platted and laid out by Hubbard Taylor, in 1792. The answer of the city of Newport in this case admits that no streets were laid out beyond Front street. The evidence of Hubbard Taylor shows, that no ground north of Front street was surve}red or included in said town, as laid out by him on the plat thereof exhibited in 1792. The plat itself exhibits a continuous, unbroken black line on the north line of Front street, as the northern boundary of the town, and evidences not the remotest indication that the ground between Front street and the Ohio river, was dedicated, or intended for public use.
    There is 'no proof of any parol dedication of the ground in controversy, at the period of the location of this town, in 1792. The testimony of not a solitary witness is offered, going to uphold such a dedication. Hubbard Taylor, the agent for his father, says, “that he avoided and refused to lay off any part of the ground between Front street and the Ohio river, cither into streets or lots; nor did he lay off any of the streets running towards the river, beyond Front street, in order that all the ground between Front and the river might be reserved to said Taylor, and also to enable him to hold the exclusive right to the ferry across the Ohio river, in front of said town. He states that his agencj1, for his father, James Taylor, of Virginia, ceased in 1793, and no street was ever laid out by him, to the Ohio river.”
    This statement is wholly and entirely inconsistent with any verbal dedication of the slip in question, by him, and would have been destructive of the great object which he states it was his intention to perpetuate, viz: a retention of this slip by his father, for purposes in his deposition set out. If, then, there was no express written dedication of this slip, and no parol dedication, nothing on the plat evidencing an intention on the part of the proprietor or his agent, to give this slip to the public, in 1792; some act must then have been done by said agent in the laying out of said town, from which an implied dedication will result to the public, of this ground in controversy. Does this record furnish the evidence of any such act.
    Let it be remembered, that James Taylor, of Virginia,' was the patentee of the ground in controversy, and entered into the possession of it many years prior to the year 1792. If it is to be taken from him, or those claiming under him, it must be by some clear, unequivocal, well defined act of his, proving a dedication, or wholly and directly inconsistent with the retention of this ground, after the performance of such act. A dedication to be implied, must be under circumstances which clearly indicate an abandonment by the patentee, of the use of this slip, exclusively to the public. (4 Gamp., N. P., 16; 11 East, 370 ; 3 D. éf E. 265; Jarvis vs. Dean, 3 Bingh., 447 ; 22 Pick., 75.) There must be no declarations of the owner, of any reservation, or any other declaration inconsistent with his clear assent to such dedication. (Levettvs. Wilson, 3 Bingh., 116; 7 Leigh. Va. R.,546.) The idea of a dedication to the public, of a use of land for a road, (and a fortiori for a public wharf,) must rest on the clear assent of the owner, in some way, to such dedication. (8 Adolphus Ellis, 99; 1 Hill, 191; 19 Wendell, 128; 6 Peters, 431; Sargent vs. Ballard, 9 Pick., 256; 3 Kents Corn., 445 ; 1 Camp. N. P., 262; 9 How. S. C. R., 30.)
    Now what is the act from which the assent of James Taylor, of Virginia, to a dedication of this ground, is to be inferred?
    
      If I correctly comprehend the argument on this point, of the learned counsel opposed to me, it is, that as the town of Newport was laid out on the river, with a plat showing its location on the river, no reservation on the plat of this ground, between Front street and the Ohio river, the exhibition and sale of lots under this plat, in 1792, that these are acts which afford abundant ground from which a dedication of this slip of ground to the public use, by the consent of the proprietor, is to be implied.
    If there were nothing in the record explaining these acts, giving to them their fullest force, there wmuld be great force in this argument. Thus if a man makes a plan of a city on his land, with certain streets and alleys laid down between the lots, and he sells them under this plat, it is presumed that he intends to dedicate such streets and alleys, and he is estopped to deny it. This acknowledged and familiar principle is recognized in a number of adjudged cases of high authority. (7 How. U. S., 196; 6 Pet., 106 ; 10 Pet., 718; 4 Paige. 510.)
    So too, in this court, it has been held that a location on the river, is sufficient evidence that the town so located extends to the water. (Trustees of Muysville vs. Boone, 2 J. J. M., 224; Giltner vs. Trustees of Carrolton,t B. M., 680;) and in the City of Louisville vs. Bank of U. States, 3 Ben. Mon., 144, it was so held, even though there was an unbroken black line in the plan of the town,on the side of Water street next to the river, and that the intervening space was not divided into lots or squares.
    But the evidence in this record does not render this principle applicable. Undoubted law, in this State, we admit it to be, whenever a state of fact is disclosed which authorizes its application. In the eases referred to, and others of a similar character which might be cited, especially in Rowan's Executor vs. the town of Portland, 8 Ben, Monroe, 232, the question was, whether upon the face of the map a plan of the several towns cited in the various cases, located upon a large navigable river, having a strip of ground between the street next to the river and the river, such town was to be regarded as extending to the river, and whether an intervening slip of ground between the streets next to the river and the river, in these towns, were to be regarded as dedicated by the original proprietor to the public use.— Where nothing was said cn the plat touching said strip of land, and even where there was an unbroken black line between the street and the river, the court held that said towns were to be considered as extending to the water, and the intervening ground was to be regarded as intended for public use. And why? Because, looking to the map alone, they think it would be almost as reasonable in a proprietor, to sell as private property the river itself, as the ground lining its margin — the occlusion of which, would obstruct the communication between the city and the river. The object of locating the town was, to enjoy the benefit of its facilities as a highway. Looking then, to the map unexplained and alone, they give that construction which will carry out this supposed intention of the founder of said town.
    There is nothing however, in any of the cases in Kentucky, (carried, as I think to an extreme length,) which intimates, that if there be evidence to rebut or repel such presumptions, or to show that said town did not include said strip, and was not laid out, surveyed or extended to the river, that still the map, without an endorsement of dedication, would carry them to the same results. Far from it. These cases go only to the point that an unbroken line, and the absence of any words on the intervening slip, are not sufficient to oppose the conclusion, in the absence of other proof, that the intention of the original owner was to dedicate the slip to public use.
    In the case at bar, we have not only an unbroken line on the north side of Front street, but we have the evidence of the agent of the proprietor, laying out the town, that the slip in controversy, was not only never included in the town or made a part of the plat, but that it never was surveyed, and that this ground was expressly reserved by the proprietor from constituting any part of the town, and the reasons given for such reservation. Is it denied that this reservation was competent? Sucha denial assumes the principle, that the owner of the soil could not dispose of his property in his own way, and that he would be incompetent to lay out a town near a river, without extending it against his will, to the water’s edge. The statement of such a proposition, carries with it its own refutation. In the very case of Rowans' Executors vs. the town of Portland, so much relied on by counsel upon the other side, the court say: “It was entirely within the power, and at the discretion of the proprietor, in the first instance, to determine how much or how little of the intervening space should be left open to the public.” (8 Ben. Monroe, 246.) He had a right to withhold it all, and run the risk of having no lots sold, or to dedicate it, with the prospect of having all the lots sold at an enhanced price. The only points decided in that case, or similar ones by our court, or any other, is, that where the plat is silent on the subject of the dedication of a slip of ground intervening between the lots and the river, that an unbroken black line, together with intervening space, are not sufficient to rebut the presumption arising from the location of the said town on the river, that the proprietor intended said open space for the public use of the lot-holders in said town, in affording them free access to the river.
    There is, however, not an intimation in any one of the cases, that these presumptions cannot be repelled by proof; that the slip was reserved as private property, and never included in the town. If this be shown, as we think it has abundantly been, by the testimony of Hubbard Taylor, then the cases cited militate for, not against us. And why ? The right of the inhabitants of a town to an easement over a space like this, where it exists at all, rests upon the supposed fact, that the original proprietor has been compensated for the surrender of his interest therein, by the increased readiness of sale, and enhanced value imparted to the lots, by the prospective use by the public of this slip, as a means of ingress and egress, and the commercial advantages of a navigable river. This surrender by the proprietor, of his private right in such a slip, to prospective public use, is evidenced by his solemn acts of dedication and grant of easements; or by such acts from which a dedication can be inferred. Where, however, there is evidence to show, that in the first sale of lots, this slip was retained by said proprietor, and was not included in the plan, and was not intended to constitute a part of the town, the purchasers of lots bought with this full knowledge of such retention of the same, as private property; and so far from an enhanced value in the sale of lots, a corresponding depression would have taken place, and no compensation to the owner could have taken place to the proprietor. The reason on which former decisions rested being taken away, their force is destroyed.
    I may here be met with the argument, that after a dedication of this slip, and a parting with the title by the proprietor, there could be no such parol reservation, as Hubbard Taylor attempts to prove. If this postulate be granted, the conclusion would be irresistible. The error, however, is in the assumption. We are the owners of the fee, and in the possession of this slip. We deny the dedication of it, and call for the proof. The plat of the town does not extend to the river. There is an unbroken line separating it from the river. The uncontradicted testimony of him who laid out the town in 1792, supports the fact that it never was surveyed, included, and never did constitute a part of the town. But we do not even rest it here. John Bartle was the purchaser of certain lots at the first sale of lots, in 1792. — ■ His lots were on Front street, and if the statement be true in the answer, that Front street was the northern boundary of the town, he would have been the owner of the ground, and entitled to a ferry.— He applied to the Mason county court for a ferry, in 1793, from his lots in Newport, which was granted him, and in January, 1794, a ferry was granted to James Taylor, who immediately prosecuted a writ of error to the order of the Mason county court, granting John Bartie his ferry, which order was reversed by this court, in 1798, upon the ground that it did not appear that Bartie was the owner of land bounding on the river. The grant to James Taylor, from this disputed slip, was acquiesced in by all the purchasers of lots.
    This reversal of Bartle’s grant to a ferry, strongly corroborates Hubbard Taylor’s testimony as to this slip, when taken in connection with the grant of a ferry to James Taylor, in 1794, and the acquiescence of all purchasers of lots in Newport at that time, of his exclusive right to a ferry. It is amost an irresistible conviction that all the purchasers of lots, in 1792, bought with full knowledge that this slip was not included in the town of Newport, was not intended for public use, but was reserved by the proprietor, in exact accordance with Hubbard Taylor’s testimony. If further testimony be required, that this slip did not constitute a part of the original plan of Newport, in 1792, it may be found in the fact, that when a re-survey was had by Roberts, in 1795, the town was enlarged, and extended from Monmouth street to East Row, on the eastern boundary. One hundred and eighty acres was laid off in this enlarged re-survey, in 1795, and that did not include this strip ; nor was it surveyed by Roberts, or included in the one hundred and eighty acres designated for the town. (G J. J. Marshall, 139.) If there had been a dedication of this strip, in 1792, and it was then a part of the town of Newport, how can it be rationally accounted for, that when a re-survey became necessary, for an enlargement of the town in 1795, a portion of its former limits, and so important a portion too, as affording those commercial facilities so strongly dwelt on, should not have been surveyed and included within the boundaries of the town ? In addition to all this, the attention of the court is called to the conveyance of James Taylor, of Virginia, to James Taylor, of Kentucky, in 1799, in which this strip is not only conveyed, but the ferry franchise is particularly designated; a fact wholly inconsistent with a dedication of it in 1792, to the public use.
    In every aspect in which the subject of laying out the town in 1792, can be viewed, the conclusion is irresistible, that this slip was reserved from that part of the land set apart and laid out for said town. The idea of an intent to dedicate this slip to public use in 1792, is repelled, not only by direct testimony of the only active agent, who surveyed and superintended the laying out of the town, but by the other facts and circumstances hereinbefore detailed, which can be made to harmonize upon no other hypothesis, than that of its exclusion from the limits of the original plan of the town.
    II. In 1795, it is probable that the inconvenience resulting to the inhabitants of Newport, from an exclusion of the ground in front of said town, from its defined limits, as laid out in 1792, and its reservation by the proprietor, began to be felt. It had not yet been incorporated, and we have a right to infer, there were but few inhabitants. In August, 1795, a re-survey was made by Roberts, and on the 14th December, 1795, the town was incorporated by an act of the legislature, approved that day. By the first section of that act, “it is enacted that the land comprehending the said town, agreeable to a plat made by John Roberts, be, and the same is hereby vested in Thomas Kennedy, &c., as trustees.” By the seventh section of that act, it is provided, “that such part of said town as lies between the lots and rivers Ohio and Licking, as will appear by reference to the said plat, shall forever remain for the use and benefit of the said town for a common : reserving to the said James Jaylor and his heirs and assigns, every advantage and privilege which he has not disposed of, or which he would bylaw, be entitled to.”
    
    This is the first intimation of any public use or right to this slip. The streets, as laid down under this re-survey, did not extend to the river, and this slip, not included in the one hundred and eighty acres as set apart for a town, is now, by the seventh section of the act of incorporation, made a part thereof, subject to the important reservation by James Taylor, of every privilege and advantage not disposed of, or which, by law, he could be entitled to. Upon the Roberts plat, the space of ground between the lots and the Ohio river, was designated, “ Esplanade.”
    
    The question occurs, what rights were included in the reservation by James Taylor, contained in the seventh section of the act of incorporation?
    We answer, that the exclusive ferry franchise, as well as all incidental rights of wharfage. As to the exclusive right to this ferry on behalf of Taylor, we are saved any argument, because the point has already been settled, and adjudicated on by this court. The ferry had been constant^ run across the Ohio from Newport, from 1794, by James Taylor, of Virginia, under his grant from the Mason county court, in that year, until the year 1799, when he conveyed it, with all his interest in the ground in front of Newport, to his son, General James Taylor, of Kentucky, it was run by him exclusively and continuously, until 1807, -when, in consequence of the passage of the act of 1806, he applied, in person, to the Campbell county court for a grant of this ferry, in his own name, which was granted him. He continued to run it until the period of his death, in 1848, and it has been run without interruption, by his executor and heirs, ever since, until this effort of the defendants.
    In 1830, the trustees of Newport applied to the Campbell county court, for the grant of a ferry from Newport across the Ohio, which application was overruled, and an appeal taken to this court, when the judgment of the Campbell county court was affirmed. reference to the opinion of this court in that case, (6 J. J. Marshall, 134,) will show that the exclusive ferry privilege was in James Taylor; that the right of common as secured to the people of Newport, was not inconsistent with this exclusive ferry privilege in Taylor. The court incline to the opinion that the legal title to this slip or common in front of said town, was not vested in the trustees by the act of 1795, but still remained in Taylor. But if the divestiture of the legal title out of Taylor, had taken place, their judicial construction of the act of incorporation was, that such retention of the legal title by Taylor was not necessary to secure him, not only the ferry franchise, but all other advantages intended by the compact between the said Taylor and said town, and which the legislative act of incorporation fully effectuated. This court also held, that the expressions in the seventh section of the act of incorporation, “every advantage and privilege which he, Taylor, had not disposed of” could not be restricted to the ferry which had been granted him, but, that the words used by the legislature, imported other advantages and privileges, and that this reservation was fully legalized by statute. What other privilege or advantage more important than that of wharfage, when the town should become a city ? This court also held, that the following words in the first section of the act of incorporation of Newport, “except such parts as are hereafter excepted,” applied also to the common, and was a clear indication in addition to the language in the seventh section, that the proprietor did not intend to part with the legal title to the common. The attention of the court is called especially, to the fact that both the plats of 1792, as well as that of 1795, were before the court, as is shown, not only by a reference to the record filed as an exhibit, with the plaintiff’s petition, but by a direct reference by this court to Hubbard Taylor’s testimony, already commented on. If, therefore, this court, with the plats of 1792 and 1795, both before it, with the indorsement on the plat of 1795, of an Esplanade or common, judicially adjudged, that the plat of 1795, and the act of incorporation of Newport, did not divest the proprietor of the legal title to the common, nor deprive him of the benefits of an exclusive ferry privilege from said common, as well as all other privileges not inconsistent with a right of common, how could the plat of 1792 have that effect? Is not, therefore, this decision an adjudication upon both plats, and a full adjudication on his title to this common, and all its incidental privileges not inconsistent with a right of common? And again, if the right of an exclusive ferry privilege in Taylor, as held by this court, is not inconsistent with a right of common, as secured to the town, in what particular does a right to collect wharfage, reserved in the same way, upon wharves which Taylor has contributed largely in erecting, and over which he has exercised the exclusive use, militate against the right of common in the law? We refer the court, in support of this claim of wharfage, to 1 Yeates, 167; 9 Sergeant <§■ Rawle, 26; 3 Watts, 219, as abundantly establishing the fact, that if the legal title to this common is in Taylor, with the exclusive ferry privileges, and that other advantages not inconsistent with a right of common have been secured to him by the legislative act of incorporation, his right to collect wharfage is unquestioned.
    The case of Rowan’s executors vs. The Town of Portland, 8 B. Monroe, 254, does not militate against this-claim; and for the simple reason, that the court held, in that case, that there had been a public dedication by Lytle, of the slip of ground on which the wharves-had. been erected. The court deeming the right to erect wharves an individual right, no one had the privilege, against the consent of the town, to erect a wharf on ground dedicated to it j but that such »- right, in consequence of the dedication of the common, was in the town itself, and might be used by it in increasing its commercial advantages, by building up wharves, and charging moderate tolls. If thé town possessed the right, as in that case decided, it is clear no one else could possess it.
    In the case at bar, however, by the opinion of this court, in the case of Trustees of Newport vs. Taylorf already cited, Taylor is clothed with the legal title to this common — has reserved every advantage and privilege not inconsistent with a right of common. Is the right to erect wharves and charge wharfage', inconsistent with this common ? Far from it. As this court remarked, in Rowan vs. Town of Portland,-8 B. Monroe, 254, the making of a proper wharf, with reasonable tolls for its use, would not necessarily obstruct the public access to the river, but might be advantageous to the town, as a place of commerce, and in that case, was one of the uses for which the-slip was dedicated ; and it was not understood to be-reserved as an individual right, by the proprietor.— To render the question, as we think, perfectly conelu-. sive, we beg to quote the language of this court, in the case last cited, on the direct point of a right to wharfage, where there has been such a reservation-of private rights by the proprietor, as this court ha»' decided in 6 J. J. Marshall, was reserved by Taylor. • The court say: “Although it could not have been urged1 in support of the public right, to the destruction of> private rights, plainly reserved in the dedication, ifc! may and should operate as corroborative of the pub-' lie right, when claimed as a part of the dedication,to the beneficial enjoyment of which it is essential,: and which was made without any reservation of pri--vate right, either express or implied.” (8 B. Mon roe, 258.)
    Taking this decision at law, and harmonizing it: with the judicial construction given by this court, to the act of 1795, incorporating the town- of Newport* in which it is adjudged, Taylor reserved, by legisla-' tive enactment, every right and privilege not inconsistent with a right of common, we think his right to both a ferry and wharfage, clear and unquestionable.
    . III. The question now occurs, what effect have the two adjudicated cases of Trustees of Newport against Taylor, and the city of Newport against Taylor’s heirs, upon the rights of the defendants in this controversy? As to the ferry right, we should regard that there could be no diversity of opinion, that the town and city of Newport were completely barred by the adjudicated cases referred to. Such I understand the ruling oí this court to have been, in 11 Ben. Monroe, 363, where judge Graham, in delivering the opinion of the court, says “Ordinarily, the failure of one application for a ferry, will not forbid another application by the same party. At one time there may be no necessity for a ferry, and at a subsequent period the public good may imperiously require it. At one time the applicant may have no such interest in the land as to entitle him to such a privilege ; but he may subsequently acquire such an interest. In these and all such cases, the order of, or a judgment in one case will not prevent another application. But this case is presented in a different aspect. Here, the city of Newport has precisely the same rights and interests which the toVn of Newport had in 1830. No new or additional rights or interests have since accrued to the city. If the act of 1795, vested in Taylor the exclusive right to ferry privileges, nothing has occurred since, so far as appears from the record before us, to take it from him or bis heirs. In the case of Morgan's heirs vs. Parker, 1 Dana, 144, it is said that the court, having by two decisions, settled the identity of an object, called for in an entry, will,in subsequent cases, upon the same evidence, adhere to the former decisions. This was said in a controversy, not between the same parties. If that be a sound principle as to the mere identity of an object, certainly it is much more conclusively applicable in a case involving the legal construction of a statute.”
    The learned judge then concludes that this court is not authorized to depart from the decision of the same tribunal in 1831, in its exposition of the statute incorporating the town of Newport, by which Taylor’s right to a ferry was reserved.
    As the owners of the Commodore claim under the city of Newport, all their right to this common, they are equally bound as privies by the foregoing decisions, though they were not parties.
    It is gravely argued, however, by the learned counsel opposed to me, “that as these decisions are upon questions of law, they are of no moi e weight in this case, than other decisions of the same court upon quesii ms of law, arising on similar facts in other cases, and may he rehutted hy such other decisions.”
    
    If the object of this proposition is to claim for this court a right to overrule its former decisions, and after being so overruled, that they are no longer of any binding force, I admit the statement as undoubted law.
    I challenge, however, the production of a solitary case intimating a dictum overruling either of the cases, in 8 J. J. Marshall, or 11 Ben. Monroe.
    
    It was warmly urged in the court below, that though not expressly overruled, the case in 6 J. J. Marshall, had been virtually overruled by the cases of Rowan's Ex’rs vs. town of Portland, 8 Ben. Monroe, 234; Trustees of Dover vs. Pox, 9 Ben. Monroe, 200, and that the doctrines of later cases were wholly inconsistent with those in 6 /. J. Marshall.
    
    It might be a sufficient reply to this argument to say, that the case of the City of Newport vs. Taylor’s heirs, in 11 Ben. Monroe, 362, is a later ruling than either of the cases relied on by counsel for overturning it If the case of Rowan’s Ex’rs vs. Portland, or Fox vs. Dover, had contained doctrines repugnant to that of the Toion of Newport vs. Taylor, it is probable this court would have overruled that case, and not have announced that they considered themselves bound by it I deny, then, that there is anything in the cases of Rowan’s Ex’t's vs. Portland, or of Dover vs. Fox, inconsistent with the principles settled in the two eases of Newport vs. Taylor. The results and conclusions are entirely distinct and different in the cases, and the state of facts requiring the application of legal principles were entirely dissimilar. So far from a diversity of principle in any of these cases, I confidently rely upon both the cases of Rowan’s Ex’rs vs. Portland, and Dover vs. Fox, as direct authority, under the state of acts exhibited in this record, for the support of Taylor’s claim to the exclusive ferry right and wharfage.
    Had there been any proof, in the case of Rowan vs. Portland, like that of Hubbard Taylor in this record, is‘it believed that the town could have retained that ferry ? Had it been shown in-that case, as it was in the case of Town of Newport vs. Taylor, that the origiginal plan of the town did not, and was not intended by the proprietor to include the slip binding on the river, is it seriously believed that the decision of this court would have given the slip to the town of Portland ? Would the presumptions of a dedication, arising from the plat of a town on the river, not be capable of being contradicted and explained by proof aliunde? Had there been such a compact between Lytle and the town of Portland, carried out in good faith by a legislative enactment, like that of 1795, between Taylor and the Trustees of Newport, reserving and guaranteeing to said Lytle, not only an exclusive ferry right, but every other advantage and privilege which by law’ he was entitled to, not inconsistent with a right of common; can it be doubted that the decision of Taylor and Lytle in their respective cases would have been dissimilar? To give a negative answer to this question, is to shut our eyes to the total diversity of evidence introduced into, the two cases,, and to which entire different state of fact is to be attributed, the different conclusions in the two cases.
    The case of Trustees of Dover vs. Fox, 9 Ben. Monroe, 200, is even still more dissimilar in its facts from the Newport case, than that of Rowan vs. Portland, just commenced on. In the case oí Dover, Fox sold three-fourths of fifty acres to Murphy, Waters and Duke, for the purpose of laying out the town of Dover, which was done. They made a plat of the town, which was exhibited at the sale of lots, upon which plat all the space between the lots and the river, is designated as Water street. At the first sale of lots, it was announced by the auctioneer that the ground fronting on the river, was for the benefit of the town, as in the Newport case, it was announced by Hubbard Taylor that the slip next to the river was for James Taylor and not included in the plat. The question in the Dover case, was, whether Fox or the Trustees Avere entitled to the ferry right ? This court under that state of fact, gave the ferry to the trustees of Dover, aiid say that whether Fox had parted with the legal title or not, was immaterial. If he had, then the title was in the trustees. If he had not, why then, that he held it in trust for them, and they were entitled to the beneficial use of the ferry.
    It is wholly unnecessary to compare this case with that of the Trustees of Newport vs. Taylor, or show the dissimilarity of fact running throughout the two cases.
    The case last cited, of Dover vs. Fox, is relied on by us, however, as supporting the position, that if by this act of 1795, the legal title to the esplanade had vested in the trustees of Newport, still Taylor would have had not only the wharves and a right to wharf-age, but also the ferry right — having reserved these beneficial uses and advantages to himself from this slip, by the compact between himself and said town of Newport, in 1795, and acquiesced in ever since. This court has given judicial construction of that act of 1795, and twenty years after that first decision, still adheres to it. By it, Taylor is declared to have reserved every right and advantage in this slip, to which by law he would be entitled, not inconsistent with a right of common. This result would follow by the decision of Dover vs. Fox, whether the legal title was in Taylor or the trustees. Is then, the right of wharfage or ferriage inconsistent with this right of common ? By the decision of the cases in 6 J. J. Marshad.ll, and 11 Ben. Monroe, the right of ferriage is settled as not inconsistent, and in Rowan's Ex'rs vs. Portland, 254, it is expressly ruled, as already shown, that a right of wharfage is not inconsistent with a right of access by the people to the river, but that the building of wharves by the original proprietor of the town, where the right was reserved, would be beneficial to the town, by increasing its commercial advantages. By the words, then, “every privilege and advantage,” as used by this court, in 6 J. J. Marshall, as having been retained and secured to Jas. Taylor, is included the right to wharfage and exclusive ferriage. If this be so, it follows that these defendants owning the Commodore, claiming under the town, are bound by the former decisions, and that the questions of ferriage and wharfage arc res adjudicata.
    
    IY. Wé confidently rely on the position, however, that if this court would have excluded Hubbard Taylor’s testimony, and the other strong extrinsic facts supporting it, going to show that this slip was never dedicated to public use, and from the face of the map of 1792, inferred a dedication,'it would long since have been freed from said dedication by the continued adverse use by Taylor, and those claiming under him, for more than fifty years ; and the acquiesence therein, by the town of Newport. The testimony of McArthur, who states, that as late as 1843, he was, by direction of the city council of Newport, as an assessor of said town, directed to assess this esplanade to General Taylor, and which he did on his books. The testimony of George Perry, who proves, that while as a member of the city council or board of trustees, tbe subject was discussed and tbe trustees of said town acquiesced and acknowledged said strip to belong to Taylor. The united testimony of Jacob Fowler, whom the defendants prove to have been a purchaser of lots in 1792, supported as it is, by Carter, Rugg, Tupman, show incontestibly that from 1804 Taylor has not only exercised acts of ownership over this slip by quarrying rock, continuously running his ferry from almost every part of the esplanade, from the mouth of Licking to East Row, forbidding trespassers; but that his exclusive control and ownership has been recognized and acquiesced in by the town of Newport, and its inhabitants for the past fift}'years.
    That the statutes of limitation applicable to a case like this, and that the public right, as growing out of a dedication, had once existed, was subject to be defeated and divested by such a possession, was expressly held by this court in Rowan's Ex'rs vs. the town of Portland, 8 Ben. Monroe, 259. The proof of Perry goes to show that the trustees, in 1815 or 1816, knew of Taylor’s claim to the esplanade, and acquiesced in it, while his exclusive ferry franchise from every part of said ground, was continuous for fifty-six years. If they, therefore, chose to slumber on their rights,with their belief of a dedication, it is too late now, to assert them if they had, against all our strong evidence,, ever existed.
    The permission given by General Taylor, to the citizens of Newport, to use this space as a common for ingress and egress, or for other purposes, in subordination to his rights, did not interfere with or destroy his possession. (Irvin vs. Dixon, 9 S. C. Howard, 33.) In that case the court say: “From the very nature of the wharf property, the access must be kept open for the convenience of the owner and his customers ; but no one ever presumed that the property thereby became public instead of private, and especially under such numerous and decisive circumstances as existed here, rebutting that inference.”
    The limitation was undoubtedly complete to quiet and defend any dedication made in 1792.
    V. It is argued upon the otherside, that as the intercourse between the port of Cincinnati, Ohio, and the port of Newport, in Kentucky, by steamboats crossing the Ohio river, with freight and passengers, is now a matter of convenience between and among the States, carried on by navigation, and as such, is prohibited and regulated by the federal government, that consequently, no State can prohibit this commerce by any local statutory provision, nor grant any exclusive license or privilege to carry it on, under the name of ferry franchise, and that any such statutes are null and void.
    A full answer to this proposition of learned counsel on the other side,might be offered by an emphatic denial of the existence of any statute in the commonwealth of Kentucky, on the subject of ferries, or otherwise, as interfering in the slightest degree, with the free navigation of the Ohio river. The unrestricted freedom of this national highway, for the purposes of navigation, is admitted to its fullest extent. The right of a free navigation of the Ohio, as guarantied by the compact between Virginia and Kentucky, to all the citizens of the United States, hitherto unquestioned and undenied, is not at all inconsistent with, or antagonistic to the undeniable and unlimited jurisdiction of the commonwealth of Kentucky, over all persons and things, within its territorial limits, where that jurisdiction is not surrendered or restrained by the federal government. The enactment by the Kentucky legislature, of any of its statutes on the subject of ferries, operating exclusively within its own territorial limits, is so undoubted an exereise of State sovereignty, upon matters entirely internal and municipal in their operation, that it is at least novel to find so undoubted a right, at this day, questioned. Plow State jurisdiction as to ferry landings, purely local in its operation, and hitherto unquestioned in its exercise, is to be abridged and overthrown, from the acknowledged and guarrantied free navigation of the Ohio, is still more difficult of apprehension.
    In 1806, the legislature of Kentucky declared by statute, that no ferry should be granted to any one on the Ohio river, who was not the owner of the fee to the land on w'hich said ferry.was granted. The necessity and object of such a statute upon the Ohio, is self-evident. Its application extended exclusively to that river, and its provisions was justified by every principle of necessity and safety for the protection of certain property within the State. An attempt to destroy the efficacy and safeguards derived from such a source, by a complete overthrow of all our statutes concerning ferries on the Ohio river, is a bold assumption ; the more important and alarming at the present day, since we witness daily the large amount of property, which their force has been impotent to resist. Upon what ground does this assault rest? It is alledged that as the steamer Commodore has been entered and enrolled as a licensed vessel, in the custom house in Cincinnati, under the coasting act of the United States, that she has a right to navigate the Ohio river. We admit it. And it is further alledged that as a refusal to permit her to land upon the private wharf of James Taylor, against his consent, or a refusal by the proper constituted municipal authorities of the State of Kentucky to grant her a ferry license, without a compliance with any of the requisites of our statute on the subject of ferries, that such a refusal is an infringement of the rights of the license of the federal government — so granted to this vessel — is a virtual denial of the free navigation of the Ohio; and that all such statutes, being in conflict with the commercial regulations of the United States, under which said license was granted, the regulations of commerce having been surrendered wholly to the federal government, such State laws must yield. This, if I comprehend it, is the ground on which our ferry statutes are to be overthrown. It is the only plausible basis on which an argument against their constitutionality can rest.
    Let the question be met!
    Plave the States a right to enact laws, prescribing the terms and conditions upon which ferry franchises shall, or shall not be granted upon navigable rivers, that constitute the boundaries between separate States ?
    That the states possessed the power, before the adoption of the federal constitution, is undoubted. There were then thirteen sovereign states, wholly independent in themselves. Prior to the adoption of the federal constitution, they had been united under certain articles of confederation, entered into for the common purpose of achieving and maintaining their independence.
    These articles proved inefficient for the avowed purpose of their adoption, and was folpuved by the adoption of the federal constitution. That instrument was the fruit of wise and patriotic councils. It was fi'omed by the representatives of delegates sent and elected bjr those sovereign states. It was adopted by these same states as states. It was formed upon the altar of patriotism, but formed, I must be permitted to say, under the natural feeling, that the infant government was to be the weaker instrument as compared with the constitudons of the thirteen sovereignties which it was to unite. To the real apprehensions of the framers of the constitution in its inability to resist the state governments, (increased by the perception of the weakness of the articles of confederation, which proved ineffectual,) are to be attributed the latitudinous constructions of the powers of the federal government, over that of a strict construction of its authority to the granted substantive powers, and those absolutely necessary for its execution. Great as their wisdom was, they did not perceive in the infantile work of their hands, the mighty mastodon, whose colossal strides, are now so prone to break down all the bulwarks of state sovereignty. This constitution of the thirteen sovereign states, contained the specifications of the powers granted, and the purposes and object for which they were granted.
    An examination of the constitution will show, that it contains a grant of exclusive powers, wholly yielded up by the states. It contains also a class of concurrent powers, to be exercised concurrently by federal and state governments. There are certain other powers exclusively to be exercised by the state governments. All powers not granted, are reserved by the states. To make a power exclusive in federal government, it should so expressly be declared, unless an exercise of that same power by a state government, would be incompatible and inconsistent with a similar power by Congress, or there is an express prohibition to the states.
    With this short and imperfect sketch of these powers, there can be no doubt that Kentucky, as a sovereign state before the adoption of the federal constitution, had she been in existence, would have had the power to have made any regulation she thought fit, touching the grant of ferries, or the regulation of them. Vattellsays: ‘-The sovereign may forbid the entrance of his territory, either to foreigners in general, or in particular cases, to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. (Book 2, chap. 7, sec. 94 ) So also, since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has, no doubt, a power to annex what conditions he pleases, to the permission to enter.
    The question occurs, if the power existed, has it been taken away by the federal constitution ?
    It is argued upon the other side, that it is a commercial regulation, and that the power to regulate commerce is, by the constitution of the United States, granted exclusively to Congress, that the Commodore, under the license of the United States, cannot be restricted by a state law, which must give way to the higher federal one.
    We deny that it is a commercial regulation, and if we establish that it is not, the question is ended. We maintain that ferry privileges withiu Kentucky, are mere police regulations, wholly and exclusively within state jurisdiction.
    In the forty-fifth number of the Federalist, we find, “The powers reserved to the several states will extend to all objects, which in the ordinary course of affairs, concern the lives, liberties, and properties of the people ; and the internal order, improvement, and prosperity of the state.”
    If the statutes of Kentucky, regulating ferries on the Ohio river, be tested by this standard, it is clear that the power to enact them, is clearly within the delineation of power, as extracted from the Federalist. Looking to the place, we find it on the Ohio river, wholly within the territory of Kentucky, and therefore within its jurisdiction. Looking to the persons to whom the grants are made, they are landowners within the same territorial limits; and, of course, within the same jurisdiction. If the purposes and objects of these statutes be scrutinized, it will be apparent, that their enactment was to subserve the commercial facilities of the people of the commonwealth, by keeping up constantly safe ferries across the Ohio river, and not leaving these facilities of crossing this river so essential to commerce, to the mere caprice of any who might establish them today, and as quickly abandon them to-morrow. If we look to the requisition of these statutes, that the grantees of ferries on the Ohio, should be men of substance, and not of straw ; that they should be the owners of the fee simple title to the land on which said ferry was granted, we shall find that the welfare of the people, sternly demanded their enactment. Lastly, if the penalties denounced by the statute be looked into, requiring the owners of all ferries on the Ohio river, not less than the keepers, to be strictly amenable for all loss of property, escaping or destroyed at said ferry, the legislative intent in the ex-actions to protect the property of the people of the whole commonwealth is manifestly self-evident. While it was highly necessary and important to have the Ohio river dotted with ferries, it was equally important to guard these channels of ingress and egress owing to the particular location of the river, that the benefit of free intercourse and commercial advantage to be accomplished by their establishment should not become seriously detrimental, by affording the means for the escape of slave property.
    To deny to a state the unlimited jurisdiction over all persons and things within its territorial limits, unless restrained by the constitution of the United States, is to deny to it the essential means of accomplishing that which it was the purpose of the state governments to accomplish- — the protection of life, liberty, and property. Had the power been denied to the slate governments of exclusive control as to all municipal and internal police regulations, it is abundantly manifest, that the federal government could not have been formed. The very safety to persons and property of the people of the states, show that such a power could not have been surrendered or restrained; but that it is complete, unqualified, and exclusive in the state government. Such was the unanimous opinion of the supreme court of the United States, in the case of City of New York vs. 3Iilne, II Peters, 130, 138, as expressed in the lucid opinion of that eminent jurist, P. P. Barbour, and from which the foregoing statements as to the powers of the state governments, have been almost literally taken.
    If then, these ferry statutes are mere internal police regulations, under the authority of that case, together with many others that could be cited, they are clear exercises of legitimate state sovereignty, never surrendered or restricted, but retained by the states, and undoubtedly constitutional and valid.
    VI. It is still insisted, however, that inasmuch as these ferry franchises are exclusively granted to the owners of the soil, that where these grantees of such privileges own the landing on the Ohio river, for some distance, it empowers them to prevent the landing of other boats, restricting thereby the right of the free navigation of the Ohio and interfering with commerce, the exclusive regulation of which has been committed to Congress.
    In support of this doctrine, we are referred to the case of Gibbons vs. Ogden, 9 Wheaton, 1, which is confidently relied on as a case directly in point.
    The point decided in Gibbons vs. Ogden, was, that the acts of the legislature of New York, granting to certain individuals the exclusive navigation of all the waters within the jurisdiction of that state, with boats moved by steam, for a term of years, are repugnant to that clause of the constitution which authorizes Congress to regulate commerce, so far as the said acts prohibit vessels licensed according to the law of the United States for carrying on the coasting trade, from navigating said waters.
    In expressing that opinion and the reasoning which led to it, the court do decide, that the power over commerce included navigation; that it extended to the navigable waters of the states; that it extended to navigation carried on by vessels exclusively employed in transporting passengers, but the utmost of the opinion, after all, is, that should the law of New York, granting an exclusive right to the waters of that state be upheld, and thus exclude a vessel licensed by the government of the United States, to navigate the same waters, that the two statutes would be in conflict, and that under such a collision the state law would have to yield, and that therefore, the law of New York was void.
    This case falls far short of being direct authority for the unconstitutionality of our ferry laws, admitting every proposition to be true, as stated by the court.
    The facts of one are in striking contrast to those of the other.
    The ferry laws of Kentucky, operate on land wholly within its territorial limits, and over which the state professes an acknowledged jurisdiction for all internal regulations; while in Gibbons vs. Ogden, the laws of New York, pronounced unconstitutional, attempted to operate over a large extent of navigable water, over which the court say the power to regulate commerce extended. In the case at bar, the subject on which the Kentucky statutes operate, are persons whose rights and duties are rightfully prescribed and controlled within the territorial limits in which they are formed; while in the case of Gibbons vs. Ogden, the subject matter was a steam vessel claiming the right of navigation in navigable waters. Under such a state of facts, how can that case be relied on as authority for overthrowing the ferry statutes of Kentucky ?
    But again: In the case of Gibbons vs. Ogden, 9 Wheaton, 203, Chief Justice Marshall says: “That inspection laws may have a remote and considerable influence on commerce, will not be denied, but that a power to regulate commerce is the source from which the right to pass them is derived, cannot be admitted. The object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation; or it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of ■commerce among the states, and prepare it for that purpose. 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 of which, can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regidating the internal commerce of a 
      
      state, and those which respect turnpike roads, ferries, éfc., are component parts.”
    
    This would seem to be decisive of the question. If anything else be wanting, I ask the attention of the court to the argument of Mr. Webster, in answer to that of Mr. Emmett, in this identical case, where it is conceded that the regulations of ferries, especially on lake Champlain, are not within the power of Congress, but are legitimate subjects of state regulation, as part of the internal police of the state. I press upon the attention of the counsel upon the other side, that Mr. Emmett cites the ferries on lake Champlain, (the boundary between two states,) which were conceded by Mr. Webster, (who was opposed to him,) to be within the subject matter of police regulations belonging to the states, and not to the general government. In further support of the proposition, that these statutes legulating ferries, are entirely subject matters of police, and internal regulations never surrendered to the general government, but expressly reserved by the states, I cite New York vs. Milne, 11 Peters, 156; Ogden vs. Gibbons, 9 Wheaton; 1 License Cases, 5 Howard, 624; United States vs. New Bedford Bridge, 1 Woodb. <)- Minot, 423 ; Passenger Cases, 7 Howard, 524.
    
      It is believed thatno adjudicated case can be found, in which the right of the state to control and regulate its ferries has ever been questioned. The fact that the river is the boundary between two states can, from the very reasons on which the power rests, make no difference.
    I have endeavored to show that ferries are matters of police regulation, and as such, are clearly within the exclusive control of the state governments.— Were these franchises, however, to be tortured into regulations of commerce, it would be an internal one, and they would still, from their very nature, be subjects of exclusive state jurisdiction.
    To have doubted this proposition, seems to me, wonderful. The License Cases, 5 Howard, 504-628, are full to this point. The language of Judge Wood-bury is so pertinent and apposite upon this express point, that I cannot resist copying it. He says;
    “As a general rule, the power of a state over all matter’s not granted away must be as full in the bays, ports, and harbors within her territory, intra fauces terree, as on her wharves and shores, or interior soil. And there can be little check on such legislation, beyond the discretion of each state, if we consider the great conservative reserved powers of the states, in their quarantine or health systems, in the regulation of their internal commerce, in their authority over taxation, and, in short, every local measure necessary to protect themselves against persons or things dangerous to their peace and their morals.
    “It is conceded that the states may exclude pestilence. either to the body or mind, shut out the plague or cholera, and no less, obscene paintings, lottery tickets, and convicts. (Holmes vs. Jennison et al., 14 Peters, 568 ; 9 Wheaton, 203 ; 11 Peters, 133.) How can they be sovereign within their respective spheres, without power to regulate all their internal commerce, as well as police, and direct how, when, and where it shall be conducted in articles intimately connected either with public morals, or public safety, ©r the public prosperity. {See Vattel, B. 1, ch. 19, sec. 219, 231.)”
    “Nor is there, in my view, any power conferred on the general government which has a right to control this matter of internal commerce or police, while it is fairly exercised, so as to accomplish a legitimate object, and by means adapted legally and suitably, to such end alone.”
    So again, he says:
    “There may be some doubt whether the general government or each state possesses the prohibitory power as to persons or property of certain kinds from coming into the limits of the state. But it must exist somewhere; and it seems to me rather a police power, belonging to the states, and to be exercised in the manner best suited to the tastes and institutions of each, than one anywhere granted or proper to the duties of the general government. Or, if vested in the latter at all, it is but concurrent.”
    So again:
    “The states stand properly on their reserved rights, within their own powers and sovereignty, to judge of the expediency and wisdom of their own laws; and while they take care not to violate clearly any portion of the constitution or statutes of the general government, our duty to that constitution and laws, and our respect for the state rights, must require us not to interfere. (5 Howard, S. C., 630-631.)
    If these views be correct, it clearly follows that every ' state has not only an unquestioned right to prescribe the terms on which ferry franchises are to be granted, but to attach thereto any conditions or penalties which the safety or comfort of its population may demand.
    If the power be a reserved right of the state, it follows that it cannot be exercised by the federal government ; and this brings us to a consideration of the effects of the license issued to the Commodore, as a vessel engaged in the carrying trade, under the coasting act;
    VII. We do not propose to discuss the question whether a ferry-boat, plying between Cincinniti and Newport, as such, can properly come within the provisions of the coasting act of the United States.— The question was raised before Judge Catron, on an information filed by the district attorney of the United States, the-late P. S. Loughborough, against the steam ferry-boat plying over the Ohio river, between Portland, Kentucky, and New Albany, Indiana, for failing to comply with the requisitions of that act.— The owners of the ferry relied by way of plea, on their grant of a ferry franchise from the state of Kentucky, as exempting them from the operations of that act. Their plea was demurred to, and, after full argument, overruled. Judge Catron deciding, that said act did not include steam ferry-boats between sister states. This decision was made in 1838. The whole proceedings before Judge Catron, are found in this record.
    Reference is only made to it to show, that although the. lessee of this ferry, and one of the plaintiffs, chose to obtain a license, and have his ferry-boats enrolled under the authority of this case, it was wholly unnecessary for the purpose of keeping up his ferry. The decison of the venerable Judge Catron, will also be a fair set off against the opinion of the late secretary of the Treasury, (Corwin,) that ferry-boats on the Ohio river were within the provisions of the act, and had to be licensed and enrolled.
    The question to be considered is — suppose they are within the act, what authority does the license from the United States custom house, at Cincinnati, give them to establish a ferry upon Kentucky soil, without obtaining any license from the proper state authorities, in derogation of our statute law, and in violation of private rights ?
    What privilege does this license of federal authority impart, except to authorize the Commodore to navigate the river, as a boat engaged in the carrying trade? Admit that the transportation of persons and property, between Cincinnati and Newport as a common ferry-boat, is a legitimate exercise of the carrying trade under this coasting act, under what pretense can it be claimed, that the owners of the Commodore have the right, against the consent of the state of Kentucky, to establish a ferry, and in direct violation of all her statutes in regard to ferries ?— Under what shadow of claim, can the landing of James Taylor be appropriated without his consent, and in direct destruction of his own ferry franchise? If it be admitted by the other side, that no such landing can take place except by the consent of the owner, and the lease from the city of Newport is relied on as authorizing them to land on the Esplanade, the question then turns exclusively on the dedication of the common, and that being decided against the city of Newport, this controversy is disposed of.— Should it be admitted, hoyvever, that the city had the right to dispose of this landing, it will hardly be contended, that she could impart a ferry franchise which had been denied her as a town and city, by the competent authorities of Kentucky. Is it contended that the right to navigate the Ohio under this license, includes the right to land as a ferry-boat, on Kentucky soil, in derogation of her statutes?
    If we have been at all successful in the views which we have attempted to advance, touching the exclusive jurisdiction of the states over ferries within their own limits, though said rivers be boundaries between the states, then this claim falls to the ground. If, however, it be claimed that this license from the custom house at Cincinnati, issued by the United States, authorizes the Commodore, as a ferryboat, to transport passengers and freight between Cincinnati and Newport, in direct violation of the Kentucky statute, it must be under the power to regulate commerce, exclusively confined to the federal government.
    By this reasoning, the whole control of ferries in the commonwealth of Kentucky, becomes vested in the federal government, and under its exclusive control. The commonwealth could not have even a concurrent jurisdiction of ferries, since in the regulation of commerce, where congress has acted, its action is supreme ; and it is claimed that the coasting act is an exercise of such power. Where, then, would be the guards for the protection of our property?. Should we look to congress to protect us, or look to the passage of some criminal law by the commonwealth of Kentucky; and when the non-resident owners of the various coasting ferry-boats, were indicted for an abduction of our slave property, trust to the governors of the free states for their delivery ? What would become of the pilot laws, health laws, poor laws, inspection laws, quarantine laws, decided again and again to be constitutional? They would undoubtedly all share the same fate of these ferry statutes of Kentucky. The commonwealth would be powerless and impotent to protect herself from the mid-day attempts of fanatic marauders, constantly to annoy her. These fearful results, the necessary but legitimate fruits of the construction of this coasting license, as claimed on the other side, are the strongest and clearest evidence of its utter absurdity.
    It has, however, not been left to deduction. The supreme court of the United States say : “That a license to prosecute the coasting trade is a warrant to traverse the waters washing or bounding the coasts of the United States. Such a license conveys no privilege to use, free of tolls, or of any condition whatsoever, the canals constructed by a state, or the water-courses partaking of the character of canals, exclusively within the interior of a state, and made practicable for navigation, by the funds of the State, or by privileges she may have conferred for the accomplishment of the same end. The attempt to use a coasting license for a purpose like this, is, in the first place, a departure from the obvious meaning of the document itself, and an abuse wholly beyond the object and the power of the government in granting it.” (Veazie etal. vs. Moor, 14 Howard, S. C., 575.)
    The truth is, the grant of ferry privileges to owners of the land, is not a regulation of commerce, nor an obstruction of it. If James Taylor were the owner of the whole Ohio river front for miles, commerce would only be affected consequentially and contingently by it. . He would have a right to collect his tolls, and the federal government itself would be compelled to pay them, as the government does in the use of our turnpikes, railroads, and canals. Nolis the passage of our ferry statutes an exercise by the commonwealth of a commercial power. Their adoption may, and probably does, greatly affect commerce. The state cannot regulate foreign commerce, but it may tax the ship, or vessel, by which this commerce is earned on. The state cannot convey or regulate the mails, but yet may tax the coaches in which the mail is conveyed. (7 Howard, 402.) Yet, in both instances, the tax greatly affects it. So, too, in giving the commercial power to congress, or entering into a compact for the free navigation of the Ohio river, the commonwealth of Kentucky never intended to surrender, and never did part with that power of self-preservation, whose exercise may affect commerce, but which is retained as inherent in every organized community.
    Nothing is more common than private wharves in the great cities of this confederacy. The defendants themselves, or some of them, are the owners of a private wharf in the heart of Cincinnati, from which the Commodore runs. None of the disastrous and mildew effects from private wharves, which have been portrayed upon the prospects of Newport, in consequence of the ownership of the wharf and ferry by Taylor, seem to exist in Cincinnati. The defendants seem to forget that, notwithstanding the decision of this court, both in 1831 and 1852, upon General Taylor’s reserved rights to said common and said ferry, that the city of Newport has quadrupled her population, and that it is still rapidly increasing.
    In every point suggested, the law is clearly for the plaintiffs. We ask upon our cross errors, that the title to the wharf be quieted, and that as to the other part of the decree, it be affirmed.
    
      Moreliead Sf Brown on the same side—
    The decree in this case is assailed, 1st, on the ground that chancery has no jurisdiction, the ferry privilege not being a common law right, but merely a statutory franchise, with an ample legal remedy for the infringement of such right.
    We suppose that this point is fully and clearly settled by authority. The case referred to by the learned counsel on the other side, of Almy vs. Harris, 5 
      Johns. 544, was a qui tam action, under the peculiar words of a statute, which gave the right to no particular person, and in the case of Livingston vs. Van Ingen, 9 Johns, it was said to be essentially a criminal case. The whole doctrine, however, of the jurisdiction of the chancellor, has been ably reviewed by chancellor Kent, '9 Johns. 586-7, and the conclusion drawn, “that injunctions are always granted to secure the enjoyment of statute privileges, of which the party is in the actual possession,” notwithstanding a legal remedy be also given. The very point here urged, was elaborately and ably argued in the case referred to, and on a thorough examination of authorities overruled by the chancellor. Chancellor Kent says : “The principle is, that statute privileges, no less than common law rights, when in actual possession and exercise will not be permitted to be disturbed, until the opponent has fairly tried them at law, and overthrown their pretension.” The trials at law in the instance of this ferry, have twice resulted in favor of the present possessors of it. Two solemn decisions by the highest judicial tribunal of the state, have been rendered in favor of the testator of the present plaintiff. According to the doctrine attempted to be maintained on the other side, and the authorities referred to, this would and ought to withdraw this case from the influence of the rule insisted on ; but we contend for the broader principle so clearly laid down and established by the great chancellor of New York, and respectfully invite the attention of the court to the authorities referred to by him, as conclusive of this question.
    2d. It is contended that there is a defect of parties. The suit was brought in the name of the executor of James Taylor, sr., dec’d, and of the lessee, Robert Air. The ferry was- originally granted to James Taylor, the elder, in 1794. In 1799 the land and ferry privelege were conveyed to Gen. James Taylor, and he continued to keep it until 1807, when it was granted in his name. He continued to hold it until his death, in 1848. It is known and is also charged in the bill, that the county court refused to admit Gen. Taylor’s will to record, and during this period the heirs went into court and executed the ferry bond required by the statute. The statute requires that the owner of a ferry on the Ohio river, shall, in addition to the ordinary bond, execute a covenant to pay the owner of any slave all damage he may sustain by illegally transporting him across that river. This is also required of the devisee or heir of the ferry, and of the lessee. These bonds were all executed in this case, but because the heirs, while the will stood rejected, executed such bond, it is contended that it amounted to a new grant to them, and on that account they should have been made parties. The allegation of the petition was made in reference to the existing law, and was nothing more than a declaration that such bond was executed. The exhibit filed in connection with this allegation, shows conclusively that it was merely the execution of the statutory bond, to avoid the forfeiture of the ferry franchise. There can certainly be no defect of parties on this ground. There is just as little reason for urging a defect of parties on the other grounds urged. The executor and lessee were undoubtedly in the legal possession and enjoyment of this franchise, and if it has been improperly and illegally disturbed, they undoubtedly have a right to an injunction, to prevent an irreparable injury. For what purpose should the heirs or devisees be made parties ? It is the injury at this time which is sought to be restrained. The effect of such injury may, and perhaps would, remotely affect the devisees, but the immediate and direct injury is to the lessee. He has become such with the consent, and approbation of the county court, and having executed bond according to law, h.e is legally possessed of the franchise, and could in his own name alone, maintain a bill to protect his rights. It is argued “that the question is as to the very right — the grant — its validity, &c.” How can there be any question as to that ? We had supposed that our right, the grant and its validity, were conceded,but that notwithstanding this, the defendants contended that they had the right to run their boat under the coasting laws oí the United States ; that our ferry franchise could not interfere with this right. The only question is, as to this part of the case, are the plaintiffs in the legal possession and enjoyment of this franchise, and are the defendants infringing their rights by landing their boat at Newport ? It matters not, so far as this question is concerned, in whom the legal title to the Esplanade is; so far as this ferry is concerned, it must be taken and held to have been in the grantee of the franchise. This cannot now be collaterally questioned. This point is too well settled to need the citation of authority in its support. The legal title, it is clear, is not in the city of Newport. The learned counsel on the other side supposes it now to be in the heirs of James Taylor, the elder. Admit this to be so, and the want of proper parties, does not necessarily follow. But we think it is clear that the title is where the petition alledges it to be. The deed to Gen. James Taylor from his father, has been heretofore construed by this court, to embrace the Esplanade, and it is not now an open question. But if not, and the title is not in the city of Newport, the acquiescence of the heirs of James Taylor, the elder, bars them of any claim, and the title of Gen. Jas. Taylor is valid, by lapse of time. It was decided to be his land when his ferry was granted, in 1807, and he has claimed it ever since, and this court has twice decided that it was in him. It is believed that there is no plausible pretext for contending that there is a defect of parties.
    3d. It is argued that the ferry is confined to a particular landing, York street, and that the franchise is limited to the right of carrying persons and property from the Kentucky shore to the opposite shore, and does not include the right of transportation from the opposite shore to the Kentucky side.
    Suppose this is conceded, how does it tend to show that the appellants have a right to run their boat from the opposite shore, and to land on this Esplanade? The grant of the franchise was from this land, without designating any particular part of it, to the opposite shore. It is true that the termination of York street has been the usual place of landing, but it is also clearly shown that the right has always been claimed and exercised, of landing elsewhere on the Esplanade, whenever required by necessity or convenience. This, and the right to do so, is conceded. If under any circumstances, we have this right, is it not an end of the question ? The right would be inconsistent with the claim of power by the trustees of Newport to lease the landing. The prohibited distance for another ferry,- cannot have any influence on the right to land at different points. In very low water, the landing must necessarily be different from what it would be in a high stage. If the point of landing must be absolutely and definitely fixed, so as to measure with exact precision, the prohibited distance, would you take the high or low water landing, and would it follow if one was taken, that the landing would have to be there located, and forever confined to that spot ? The prohibited distance could just as easily be ascertained under our construction of this franchise, as in the case above supposed. We cannot perceive the force of the argument arising from this view.
    But this court has conclusively established (6 J. J. M., 134,) the Esplanade belonged to Gen’l James Taylor.
    In that case the following points were decided:
    1. “In 1799, James Taylor, sr., conveyed to James Taylor, jr., all his right to the land between the lots in Newport, and the rivers Ohio and Licking ; and also, his right to the ferry, and to all incidental privileges.”
    
      2. At that time the proximity of another ferry in town, presented no legal barrier to its establishment, if otherwise sustainable.
    3. That the grant of a right of common to the people. of the town of Newport, did not vest the fee in the trustees of the town. That the 180 acres did not include the common which had not been surveyed. “The first section vested in trustees” the land, comprehending the said town, according to the plat, and declares that they “shall be trustees of the same, except such parts as are hereafter excepted.” The seventh section declared “that such part of the town” should be a common, reserving to the proprietor “every advantage and privilege which he has not disposed of.”
    
    4. That the exception referred to the common, and that the expression, “every advantage and privilege,” cannot be restricted to the ferry which had been granted, but implies generality, or plurality at least.” The words import more than one advantage or privilege. When the town was established, the proprietor had not disposed of the fee in the land, but had disposed only of the right of common therein; and therefore, the act declared that the land “should forever remain for the use and benefit of said town for a common,” reserving all rights which had not been “disposed of,” which means, “all rights not inconsistent with the right of common, which had been granted. The fee and all other rights, not inconsistent with a right of common, were retained by the proprietor.
    5. That this construction is fortified by the evidence of Hubbard Taylor, strengthened by the lapse of time, the uninterrupted enjoyment of the franchise, and sustained by the exception contained in the first section of the act.
    If this decision is law, and at all events the law of this case, the learned counsel virtually concedes, and as we understood him, did fully admit, in argument, that the case as it stands is against him. If the land is ours, the fee in us, as never having been disposed 
      
      of, and right appurtenant to it, belongs to us, except the right of ,common only, what right has the ferryboat called the “Commodore” to land on it against our consent? Or what right have the trustees of Newport to lease a landing to her proprietors ? That it does give a correct construction of the act of 1795, establishing the town of Newport, and must control the rights of the parties, has been fully established in the case of the City of Newport vs. Taylor's heirs, 11 B. Mon., 361.
    ' In that case it is re-affirmed that the proprietor had not disposed of the fee in the land betw.een the lots and the river, but had only disposed of the right of common therein, and had retained to himself, all rights not inconsistent with the right of common. In this case the court refers to the case of Morgan'.s heirs vs. Parke, 1 Dana, 144, as authority for not departing from a construction given by their predecessors. In this latter case, the identity of an object called for in an entry, had been twice settled, and the same question arose between different parties upon the same evidence, the court felt itself concluded.
    The same evidence precisely is before the court in this case as in the two cases in 6 J. J. M., and 11 B. Mon. This court felt itself constrained to adhere to the construction given to the statute of 1795, in 6 J. J. M., and after having thus adhered to it, and re-affirmed its principles upon the same identical evidence, it is asked to depart f.iom it. We assume that this cannot be done. If so, what possible claim can the Commodore have to run as a ferry-boat from Newport to Cincinnati ? This right was twice refused to Newport upon the ground that the land was Taylor’s; that the town', had nothing but a light of common — - and now the proprietors of this boat, claiming under a lease from the trustees, ask to do what was refused to their lessors. But it is contended if they cannot ferry from the Kentucky shore, that they can ferry to it. If the land is ours, they are met at once by that objection. They cannot land under an author!ty that has no right to confer it. The decisions already commented on, show that the trustees have no such right, and therefore cannot confer it on others. But such landing is expressly prohibited by our statute. The Commodore does not pretend to run under a ferry lieense, but is really transporting passengers and property as a ferry-boat, under a coasting license. The case comes directly within the interdiction of the statute, which cannot be evaded, unless by considering it as overruled by a law of the United States, and this brings us to the consideration of that point.
    4. We consider this as so fully settled by authority, and it has been so fully argued in the printed brief filed in this case, that but very little is left to be said.
    We beg leave only to file herewith an opinion of justice Catron, in the case of the United States vs. Kalfus, owner of steamboat Portland, as bearing on this point. There is also a decision in the last volume of Howard’s Reports, of a ferry case opposite Keokuk, where this question was alluded to and summarily disposed of as unworthy of discussion.
    There is scarcely a decision upon the commercial clause of the constitution, which does not fully recognized the right of the states to grant exclusive ferry privileges, and we may add, that all of them concede the jurisdiction of a court of chancery to interfere in restraining the infringement of statutory rights.
    These suggestions are thrown in in addition to the printed brief already filed.
    February 8.
   Chief Justice Marshall

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 confluence of the rivers, into streets and alleys, as a town, to which he gave the name of Newport; and made a plat or plan thereof, representing it as,situated on the banks of the said rivers, at their junction ; and representing, between the Ohio river and the lots fronting on it, a street, and between it and the river an open space, extending to the river, without any line or letter upon it. This space included a narrow and irregular strip of land on top of the bank, and extended to the water’s edge. Whether the line dividing the front street from this open space was unbroken, or had breaks or openings opposite to the cyoss streets coming into it, is not entirely certain, nor is it deemed very material. Besides this representation of the town, the original plat or map, had upon it a writing executed by the attorney of the patentee, stating the conditions upon which the lots wei’e to be sold or donated. But these related principally to the terms of payment, and the improvement of the lots by purchasers, and intimated no reservation to the proprietor of any right not indicated by the plat and the fact of his ownership. It appears that some lots were sold and conveyed by reference to this plat, before August, 1795, when a resurvey was made by John Roberts, under the direction of James Taylor, a son, and then the attorney in fact of the patentee, and a new plat was made. By this re-survey and plat, the town was extended up the Ohio river somewhat beyond its original limits. Upon the space between the additional lots and the river, were written the words, “a common;” and -on that between the original lots and the river, were written the words, “The Esplanade, to remain a common forever.” The conditions indorsed on the original plat were transferred' to this new one, but the forfeiture for non-improvement - within three years, which was one of the original conditions, was relinquished. Whether there had been any improvements, or were any actual residents within the town, or how many, when this re-survey was made, does not certainly appear. It seems, however, that in January, 1794, the county court of Mason county, in which Newport was then included, had, on motion of James Taylor, (the patentee,) established a ferry from his lands on the Ohio river, over the same, in 9 front of the town of Newport, to have and receive the same fare as is allowed from the opposite shore; and in the same year the same court had, on motion of-Bartle, to whom a lot fronting towards the river had been conveyed, granted to him a ferry across the Ohio, from Newport. But in 1795, this court, upon the appeal of James Taylor, reversed the order making that grant, because it did not appear that Bartle had any land on the Ohio river, and the ownership of land on that river, has been made by statute necessary to the grant of a ferry across it-,, from this side.

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 James Taylor, his son, a large portion of the land covered by his patent, the boundary of which, as described in the deed, began at the upper corner of the patent, on Licking river, and ran with the back line to certain objects called for, thence to the Ohio river, so as to include Duck creek, and to a corner described, and down the Ohio to a large poplar, mentioned as being the upper boundary of the town of Newport, on the Ohio, “and thence along the several boundaries on the land side of said town of Newport, as ascertained and established by law, and the recorded plat, &c., until the line strikes Licking river;” thence up the same to the beginning, so as to include all of the patent below the upper line of the land conveyed, “except so much as has been appropriated in manner aforesaid for the town of Newport; and also all right and title which said James Taylor, the elder, now hath, or is entitled to, or may hereafter have, or be entitled to, of, in, or to, any ferry, or ferries, from said town of Newport, and every part thereof, over and across both said Ohio and Licking rivers,” with all and singular the advantages, privileges, emoluments, See., of said land, and the ferry, or ferries, hereby granted, &c., and every part thereof. If the slip between the lots and the river was a part of the town of Newport, as established, &c., and the title remained in James Taylor, of Virginia, it would seem not to have passed by this deed, unless under the transfer of the present and future ferries, which may have been supposed to pass such title as the grantor had, and as was necessary to sustain the ferry or ferries referred 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, provided that the grantee shall enter into bond, &c. A general authority was also conferred upon the courts of counties lying on the Ohio, to grant ferries across said river, under a restriction as to the distance between them, and a penalty was denounced against transporting persons, &c., across the river to the opposite shore, without authority, <fcc. And, in June, 1807, an order was made by the Campbell county court, which, after reciting the previous grant by the Mason county court to James Taylor, of Virginia, of ferries across the Ohio and Licking rivers, also the provisions of the act of 1806 respecting ferries which had been granted across the Ohio, and that it satisfactorily appeared that James Taylor, of Virginia, had, by deed, -&c., conveyed to James Taylor, of this (Campbell) county, a fee simple estate in said ferries then established, or to be established, in the town of Newport, thereupon grants or establishes a ferry to “said James Taylor, of Campbell county, in front of the town of Newport, across the Ohio, to the opposite shore, under the law aforesaid, and to be allowed the same rates,” &c., &c. And the grantee thereupon entered into the bond required by said act, as owner of the land.

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 the progress of time, and business, and improvement, a horse-boat was used, and then a steam-boat, and for some years past two steam-boats have been used for the transportation of persons and property by this ferry. For many years the ferry-boats and skiffs landed and received, or put off their passengers at different parts of the shore in front of Newport, according to convenience or necessity. But for many years past the landing has been generally, and almost exclusively, at the foot of York street, except that when the water has been extremely low, the boats have landed, on a bar in the bed of the river, opposite to, but at some distance from, the foot of East row (street.)

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 establishingthe town of Newport. The opinion delivered in this last case is reported in 11 B. Monroe, 361.

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 claimed, not only that the ferry right across the Ohio- river in front of Newport, which has been used and enjoyed since 1794, belongs exclusively to the devisees of said Taylor, as appurtenant to the legal ownership of the land on and adjacent to the river, but, also, that the right of wharfage was, and is, also, appurtenant to the samé estate. And upon the allegation that the city of Newport has collected and received wharfage from boats landing upon, or at, the shore in front of Newport, alledged to be the property of said estate, and to have been for more than fifty years in the use and possession of James Taylor, of Virginia, and those deriving title from him, it is asked that the city may account for and pay to said executor the wharfage so received; also, that the lease from the city to the owners of the Commodore be annulled, and that said owners be compelled to account for, and pay, the ferriages received by, or for, them, and that they, and all others, be restrained from using part of the shore in front of Newport, for receiving or disembarking persons or property ferried across the river, in either direction, and that the exclusive possession and title of the ferry, and the ferry right, in front of Newport, as held and claimed under the grants to the Taylors, be quieted.

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 of that space to the public uses of the town, and to all the uses appropriate to such a space, intervening between a navigable river and a town situated on its banks, and that this dedication, at first to be implied from the location of the town, and the exhibition upon the plat of a narrow open space between it and the river, without any mark or word indicating an intention of appropriating it, or any part of it, to private use, was afterwards expressly made by words, “a common,” and “the Esplanade to remain a common forever,” written on the different parts of this open space in the plat made by John Roberts, in August, 1795, under which sales were made in September of the same year. The city, therefore, claims, that although the title to said slip remained in James Taylor, of Virginia, the beneficial interest and use for all purposes to which, in its relative position to the town and the river, it was as public ground appropriated, were, by the sale and purchase of lots, in making which, they deny that there was any reservation which could affect the purchasers, irrevocably vested in those who, from time to time purchased lots or became inhabitants, and in the local and general pnblic. She maintains that the legislature could not take away these rights from the town and its citizens; that the act of December 1795 was not intended and should not be construed to have this effect, and that if it did not vest in the trustees therein named the legal title to the slip between the lots and the river, neither did it, by the reservation expressed in the seventh section, enlarge or add to the existing rights of James Taylor, nor diminish or detract from those of the town and its citizens; that in the two cases in which this court decided against the application, and the right of the town and city of Newport, the only question really presented for decision, and really decided by the court, was whether the applicant had such title or interest in the Esplanade, as entitled her, under the laws of this state, to be the grantee of a ferry across the Ohio. And that her beneficial and equitable rights not having been involved in the contest for the grant of a ferry, were not the subject of decision in those, and cannot be precluded by anything which the court may have said in relation to them.

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 principally at the expense of the town or the city, are public property, rightfully under the jurisdiction and control of the city, except so far as necessarily used for the purposes of the ferry; that the city, therefore, has the right to collect and receive wharfage for its own use, from boats and vessels landing at any part of the Esplanade, and especially from such as come to the improved landings and wharves; and that she had a right to make the lease of the wharf or landing at the foot of Monmouth street, to the owners of the steamer Commodore, who, as she avers, had aright, under the authority of Congress and of the license obtained by them, to use the same in carrying on the trade and navigation between the states of Ohio and Kentucky, and for the purpose of freely receiving and disembarking persons and property in the course of that trade upon and across the Ohio, the free navigation of which is secured by inviolable guarantees to all the citizens of the United States. The same right of navigating the river for the purpose of carrying on trade and commerce, between the two states upon its opposite banks, and of using the wharf or landing at Monmouth street, under the lease from the city of Newport, is asserted by the owners and managers of the Commodore.

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 made of this rule. But upon the hearing, the injunction was perpetuated against the Commodore and the defendants, prohibiting them, and all persons claiming under them, from receiving at any part of the shore in front of Newport, passengers or property to be transported across the Ohio to the opposite shore, and also prohibiting them from landing in front of Newport, persons or property transported from the opposite side, and the entire privilege of ferrying across the river from both sides, was adjudged to be in the plaintiffs alone ; the claim on the one side for an account of wharfage received, and on the other for an account of the profits of the ferry, were disallowed- — -as was also the prayer of the city for a conveyance of the ferry right to her. But the master was directed to ascertain the amount of ferriages received for the transportation of persons and passengers across the river by the Commodore, and other matters pertaining to the claim on that account and the Esplanade. This last branch of the decree being interlocutory, the proceeding which it directs is not before this court for revision, though its propriety would be effected by a denial of the right which it was intended to effectuate. The defendants have appealed from so much of the decree as perpetuates the injunction and defines its extent, and as to so much as denies and dismisses the claim of the city of Newport to a conveyance of the ferry, and for an account of the profits of the ferry. And the executor of Taylor has taken a cross appeal from so much as denies and dismisses his claim to an account of wharfage received by the city.

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 the grants to the Taylors; second, to the nature and extent of the privilege belonging to the Commodore and her owners in virtue of the license relied on, and and to the efficacy of the license to authorize a substantial interference with the ferry privilege, as held under the laws of Kentucky; and third, to the condition in law or equity of the Esplanade and entire space between the Ohio river and the lots in Newport, as being public or private' property, and the incidental rights, public or private, which pertain to the legal or equitable property in the Esplanade, or space referred to. And under this last enquiry, will come the question as to the claim of the city to the ferry right and its profits, and as to her right to the wharves on the river front, and to wharfage, and to other uses of a public nature, in the space between the lots and the river.

1. The right of holding a ferry and its privilege of conveying passengers for toll, is a franchise in which the chancellor may protect the person in posses sion,not only by affording redress for the past, but to restrain its repeated disturbance; especially if the right has been judicially established. (9 John. Rep., 585.)

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 disturbance for which the law furnishes redress by way of damages for the injurious act, yet if the injury be of a continuous nature, and be committed under a claim which indicates a continuance or frequent and constant repetition of it, authorizes the interposition of a court of equitjr, not merely to redress the injury actually done, which is the only direct operation of the legal remedy, but mainly to afford the more efficacious relief of preventing the vexation and harassment of continued disturbance, to be redressed by a multiplicity of suits, and of preserving and protecting the right by restraining the commission or repetition of the threatened injury. And if in ordinary cases it be necessary to put the right in litigation at law, and to establish it there before this more effectual jurisdiction of the chancellor can be invoked, such a requisition would seem to be inapplicable where the right is already established, and in fact originated by the judicial action of a-tribunal having exclusive jurisdiction to grant the right; or, if the requisition be applicable, it would seem to have been substantially complied with, and its objects virtually attained, by defeating the repeated attempts to establish an additional ferry in opposition to the rights claimed under the grant to Taylor, the results of which attempts have in effect confirmed that grant, and effectually recognized the rights flowing from it. The nature and extent of those rights are defined by statute, and a court of equity is as competent to ascertain, and more competent to enfore and protect them than a court of law.

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 Livingston vs. Van Ingen, 9 Johnson’s Reports, in which, at page 585, Kent, chief justice, lays down the position and sustained it by numerous authorities, Brittish and American, that “injunctions are always granted to secure the enjoyment of statute privileges, of which the part}r is in the actual possession, unless the right be doubtful.” And it might be added, that the question of dedication, and the conflicting claim growing out of it, have been an ordinary subject of chancery jurisdiction.

2. An executor, who by will was directed to lease out a ferry, could without uniting the heirs of the testator, maintain a petition in equity to be quieted in the enjoyment of the franchise.

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 during his life, in virtue of the power given to him to rent it out and receive the rents, which necessarily included the power of superintending, controlling, and if necessary, even of using it, for the purpose of making the profits which were disposed of by the will, and it has been'seen thathe and his lessee executed the proper bond. If any shadow of title passed to the heirs, of whom the executor was one, they had no real interest,'but the substantial and beneficial interest during his life, vested exclusively in him as trustee for the devisees, of whom he was also one, and if he had not the legal title, he had the power to pass it, and did pass it by his lease to Air. As trustee of an express trust, he had a right to sue without uniting his cestui que trust for the preservation of the subject, and in vindication of the right from which the profits were to be derived. And although his interest as executor was for life only, while the interest, of his lessee was even more limited, we are of opinion that to the extent of these actually subsisting interests, united as they were with the possession, they as the parties whose rights and interest were directly affected by the acts committed and threatened, to the injury of the privilege which they claimed and were enjoying, had the same right to the aid of the court of equity for the protection of their interests, and to the full execution of its powers as far as necessary to that purpose, as if they, or one of them, had been possessed of the fee simple estate. They hold the possession, and are entitled to maintain their temporary right, for the benefit not only of themselves, but of those also who are to come after them, in remainder or reversion. If it were conceded that the loss or impairment of the present right claimed by the plaintiffs, the one as executor and the other as lessee, would not bar the claim to the same right by those who may become entitled in remainder, and that therefore the plaintiffs should be deemed incompetent to litigate the entire right, or to claim or have a relief com mensúrate with such litigation, this concession would only limit the extent of the relief to which they might be entitled, and would not tend to a total de~ nial of all relief.

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 ferry privilege, and the subsequent renewal of the grant on thé basis of that transfer, sanctioned as they are by 'a possession of fifty years, cannot now be questioned. And the ferry privilege, or right, as it has been used under the grants above mentioned, and with such rights as pertain to it by law, must be regarded as having been indisputably vested in the testator at his death, and as having passed by Ijiis will under such restriction, already referred to, as the law imposed.

3. The laws of Kentucky only profess to grant the privilege to ferry keepers, to convey passengers &c. to the opposite side of the Ohio river; and the same power and right is accorded to Ohio State, and to land at any public landing or wharf, or on private property, by leave to do so.

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.

The preamble of the act of 1806, under which tbe grant of 1807 was made to James Taylor, of Campbell county,recites, “that the county courts of several counties on the Ohio river had granted ferries across said river to the opposite shore. The first section of the act provides that the bond to be given, on confirming súch grant, shall express in its condition, that whereas a ferry hath been established from the land of said--, across the Ohio river, to the opposite shore,” &c, The third section authorizes the several' county courts aforesaid, (that is, of counties on the Ohio,) to establish ferries across said river, to the opposite shore. And the seventh section denounces a penalty against any person not authorized by said county courts, or by this act, who shall transport passengers or property across said river, to the opposite shore. This act of 1806, provided that no ferry should be established on the Ohio, within one mile above or below an established ferry, unless it be in a town, or rendered necessary by an impassable creek, orée opposite to some established jerry in the Ohio state. Ah act of 1812 denounces a penalty upon any citizen oj' Kentucky who, without authority from the laws of this state, or of the state or territory opposite to an established ferry, shall transport passengers or property across the Ohio river, from the opposite shore to the Kentucky shore, within one mile in a straight line, above or below an established ferry, for any reward, or promise thereof. The act of 1836, which is confined in its operation to the county of Jefferson, imposes a penalty upon the owners, &c., of ferries established from the opposite side of the Ohio, and not having the grant of a ferry from the Kentucky side, for transporting, without arrangement with the owner of the ferry on this side, and to its prejudice, any person, or thing, with or without charge, from the Kentucky shore to the opposite side of the river. And the Revised Statutes, Title, Ferries, section 14, page 360, adopted in 1852, denounces a penalty against any one who shall, for reward, transport any person, or thing, across a water-course, from or to a point within one mile of an established ferry, unless it be the own-gr 0† an gstablished ferry on the other side of the Ohio or Mississippi river, so transporting to such point on this side; and also against any owner (his lessee or servant,) of a ferry on the other side of either of those rivers, who shall so transport from this side without reward.

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 exclusive privilege granted to ferries established under the authority of this state, does not exceed the right thus claimed by the state, but is more restricted since it is subject to diminution by the establishment •of ferries within the distance of one mile and á half on the Ohio river, in a town or ci;y, or if an impassable stream intervenes* The right thus claimed by the state over its own territory on the river, and for the protection and benefit of its own grantees of the ferry privilege, it has not at any time denied to the states on the other side. Nor do we perceive that in any of the statutes which have been passed for the general regulation of ferries, and of the ferry right, she has overstepped the limits of that concurrent jurisdiction over the Ohio, which, by the 11th section of the compact with Virginia, is conceded to be in the states which possess the opposite shore of that river. Some comment was made by this court upon the effect of this concurrence of jurisdiction, in the case of Arnold, &c. vs. Shields, 5 Dana, 22, which arose under the act of 1830, above noticed. It was then said that this concurrence oí jurisdiction gave or implied equal power over the common river, in the states on the opposite side, and that neither of the states referred to, could, consistently with the compact, exercise any authority over it, which would destroy, impair, or obstruct the concurrent rights of the other. If this be the true exposition of this provision of the compact, and it is certainly not too restricted, it has not been violated by the ferry laws of Kentucky, which concedes to the states on the opposite shore of the Ohio, the same rights on this subject which she exercises herself. As they make no discrimination in favor of the citizens of Kentucky, when not acting under authority derived from her, over those of other states acting without the sanction of public authority, derived from them, the inhibitions and penalties of these laws, must be regarded as the exercise, in good faith, of the undoubted right and duty of the states, as well on this as on the other side of the river flowing between them, to provide for and secure for common use, upon their respective sides, suitable means for the safe and speedy passage of persons and property across the river to the opposite shore. And if it be conceded that this common right and duty of the states on each side, gives no right to land the vessel used for transportation from the one side, upon the private property of individuals on the other, without their consent, it must also be conceded that the authorized vessel used for transportation from either side, may use for landing on the other, its freight, or persons, or things, either private property with the consent of the owner, or the public highways coming to J the watei’’s edge, or, subject to suitable charges, and at any rate by consent, the public wharves or other accommodations furnished on the shore for embarking and disembarking persons and property. These rights, existing on the side of the river opposite to that on which the right of transportation from its own shore is granted, do not imply nor flow from any authority in the state which grants the privilege of transportation from its own side, but which has no power or jurisdiction on the other. They are the individual rights of all persons to pass to and fro across the river; and whatever right may be supposed to pertain to the vessel itself, in the state opposite to that in which it was licensed, is derived not from the license nor from the authority which grants it, but from the rights of individuals of which it is the instrument. These rights of ingress and transit, dependent among nations absolutely sovereign, upon the general principles of international comity, or an agreement, and ultimately upon the will of each, so far as its own territory is concerned, have, unquestionably, a firmer foundation in the principles and provisions of the constitution, which establishes the union of the states, and secures the free and peaceful intercourse of their respective citizens. It is not inconsistent with these principles and provisions, nor with the rights they intend to secure, but is on. the contrary, essential to the enjoyment of these rights, that the states bordering on a navigable river which flows between them, should possess and exercise the right of granting and controlling the privilege of ferrying from their respective shores, with such restrictions as to competition, as may be deemed necessary to secure the proper accommodations for travel and trade, and with such regulations as will secure a speedy and comfortable passage across the river; and which is more important to each or every state, separately considered, with such regulations and restrictions as may be necessary for the preservation of the property and rights of its own citizens, as to which none can be expected to judge so well as the .state herself, and for which so long as she violates no right of others, none can better provide.— The public highways and thoroughfares extending to the rivers are the best indications of the places where transportation across them from either side is required for the public accommodation; and if free ingress is allowed at these points to all who, under the just exercise by the state of its essential conservative power, have a right to enter upon or depart from its territory, there can be no complaint of an excess of its own jurisdiction, or of an invasion of the rights of others. Nor is the restriction of the transportation across the Ohio river to the established ferries for one mile above and below those established on this side, and the exclusive privilege within that distance, secured to our ferries, for the transportation from this side, an infringement of the right to the free navigation of the Ohio river, secured to all the citizens of the United States. The primary object of that guarantee was to secure to the citizens of all the states, the right of navigation to and fro along the stream, for the purposes of trade and intercourse, and free from obstruction or impediment by the laws, or under the authority of any of the states along whose borders they might pass. But it could not have been intended to deny, and does not necessarily or fairly import a denial or impairment of the territorial rights and sovereignty of the states over their own soil adjacent to the river, further, at any rate, than in particular cases may be necessary to-the use and enjoyment of the right of vavigation itself. And if the right of crossing the river from shore to shore be included in the guarantee, still, as the establishment of ferries at convenient distances, and the regulation of them, with a view to insuring a safe and speedy passage from hank to bank, is absolutely essential to the effectual and beneficial enjoyment o.f the right by all, the exclusion of unauthorized competition, being a necessary means-of keeping up for general accommodation, the established ferries, so far from being an interference with the free passage across, of those who desire to pass, is the best and only certain provision for the passage of those who are not themselves provided with the means of crossing. And we do not understand that persons residing on the river are prohibited from transporting themselves across it, by such means of their own as they are provided with. The exclusive ferry privilege, as it exists under our laws, having been thus minutely considered and defined, and the right of the state, as heretofore exercised, to grant and regulate it, having been shown not to be inconsistent with the just rights of others, but to bo but the exercise of its duties in aid of the rights of individuals, it only remains to say, under this branch of the subject, that while the laws have, for the benefit of the public, given to the owners of established ferries, some exclusive privileges, they have also, for thehenefit and security of the traveling and trading public, imposed upon them onerous duties, requiring them to furnish not only suitable- boats for transportation of persons and property with comfort and safety, and to give them immediate passage across the-river, and at rates fixed from time to time by the-county court, hut also to provide suitable accommadations for reaching and leaving the boats, and as a measure of safety found necessary in the course of events, they are prohibited from carrying slaves across the river without the consent of their owners. Their duties in all of these particulars, are secured by bonds, to be renewed at short periods, by liability to damages, for injuries caused by neglect or breach of duty, by penalties, amounting in some cases, to a forfeiture of their privileges, and by a constant subjection to the supervision and control of the court of the county within which they are situated. They are, indeed, agents of the public, invested with important rights, as the consideration and means of performing important duties with which they are charged, and for the due performance of which, they are held to a strict scrutiny and a heavy responsibility.

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 the Commodore was, in fact, engaged in the regular business of ferrying from shore to shore, under color of a license for carrying on the coasting trade. And it is contended that the power of congress to regulate commerce among the states, includes the power to regulate the navigation, and the vessels by which that commerce is carried on ; that congress, under this power, having many years ago (in 1793) enacted regulations for vessels engaged in this trade, and provided for the inspection, enrollment and licensing of such as were adapted to it, whereby they were authorized to enter any ports of the United States, and land at any public places, for purposes of trade, the subsequent act of 1838, “to provide for the better security of the lives of passengers in vessels propelled by steam,” requiring all such vessels to be inspected, enrolled and licensed under the authority of the United States, and prohibiting any, without such license, to transport passengers, or goods, on the lakes, bays, rivers, and other navigable waters of the United States; the license obtained under this act gave a similar right to the Commodore, and her own'ers, and especially when engaged in carrying on commerce between the states, to enter any ports, or open and public places, in the course of trade, and to receive and put out on the public wharves, and to transport on the Ohio river, to or from any port or place in Kentucky, to or from any port or place in Ohio, passengers and freight, constituting a part of the commerce between those states, of which a large amount passes, or is carried, on, between Newport and Cincinnati.

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 nullifted, or may at least be overborne and disregarded at the pleasure of every owner of a licensed steamboat who may choose to exercise the privilege of ferrying in contempt of that power. If the power may be thus set at defiance with impunity, it is, in effect, no power. Its existence is but a name — its attempted exercise a mockery, a delusive promise, without the power of performance.

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 which may more or less remotely affect the commerce between or among the states, which we do not admit, it would not follow, and cannot be admitted, that the mere existence of such a power granted, if granted at all, only for the general good of all, and for the promotion of harmony, and the maintenance of union among the states, should have the effect of depriving the states of all power of making any regulation which may remotely or incidentally affect that commerce. And the conclusion which, as it seems to us, is at once most consistent with the admitted supremacy of the constitution, and the constitutional acts of congress, and with the constitutional independence and sovereignty of the states, is, that there are some subjects which,* although the regulation of them may incidentally affect commerce between or among the states, are either wholly excluded from the commercial power of congress, or are open to the legislation of the states until congress legislates upon them, and so far as it does not so legislate; and there may be different subjects coming under both classes. The proposition that the power of congress extends to all subjects, the regulation of which may, however remotely, affect commerce among the states, and that the mere grant of the power, though, not exercised, is a prohibition of its exercise by the states, is inconsistent with the essential rights of self-government and self-preservation which never were, and, so long as they retain a vestige of independence, never can, be yielded by the states. It may be admitted that the states have not the power to regulate the commerce between them, and yet be true that they have other powers, the exercise of which may incidentally affect that commerce; and the constitutionality of such an exercise of an admitted power, not directed to the regulation of commerce, butto the regulation of other subjects, or objects, within the jurisdiction and power of the state', cannot be questioned, and certainly cannot be denied, unless it come in conflict with some regulation made by congress, in the legitimate exercise of its constitutional power to regulate this commerce.

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 power expressly given.” The proposition is then advanced, that although the power to enact quarantine and health laws for the proper object, be in the states, such laws may be controlled by congress so far as it maybe necessary to control them, for the regulation of commerce. And so, while the regulation of pilots is said to be within the power to regulate commerce, conferred upon congress, it is also admitted that the acknowledged power of a.state to regulate its police, its domestic trade, and to govern its own citizens, may enable it to legislate on this subject to a considerable extent. And in a previous part of the opinion, a general principle of discrimination between the powers conferred upon the government of the union, and those retained by the states, is stated in the following terms: “The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within .a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of exercising some of the general powers of the government.” And upon the question whether the power of congress to regulate commerce among the states, stops at the jurisdictional lines of the several states, he asks the significant question, “Can a trading expedition between two adjoining states, commence and terminate outside of each?”

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 congress, under its comprehensive power, to be exertfed for national purposes, should make a different regulation of the same subject. Without attempting to trace these principles through the various decisions of the supreme court, in which they have been involved, it is deemed sufficient to notice two only, viz : that of Wilson vs. The Blackbird Creek Marsh Company, 2 Peters, 250, and that of Cooley vs. The Board of Wardens of Philadelphia, 12 Howard, 311, decided in 1851. In the first of these cases the question was, whether an act of the state of Delaware, authorizing the construction of a dam across Blackbird creek, was constitutional. The tide had ebbed and flowed in the creek higher up than the place where the dam was erected. The dam stopped a navigable creek, and abridged the rights of those who had been accustomed to use it. But the court uses the following language : “The value of the property on its banks must be improved by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come in collision with the powers of the general government, are undoubtedly within those which are reserved to the states.” And while it is said' that if congress had passed any act in execution of its power to regulate commerce, the object of which was to control state •legislation over these small navigable creeks, the ■state law conflicting with it would be void, it was decided that, as congress had passed no such law, its power to regulate commerce had not been so exercised as to affect the question of the repugnancy of the law of Delaware to the power of regulating commerce conferred by the constitution.

4. The power of Congress to regulate commerce between the States, does not interfere with the right of the States to leg islate on questions which concern its own par ticular interests and those of its ferries?’ where Congress has not legislated. (13 How«rá, 318.)

In the other case referred to, (12 Howard, 318,) the question whether the grant to congress of the power to regulate commerce, did, per se', deprive the states of all power to regulate pilots, is expressly discussed and decided. And on the ground that it is not the mere existence of the power over commerce, but its exercise by congress, which may be incompatible with the exercise of the same power by the states, which, therefore, may legislate in the absence of congressi°na^ regulations, and on the ground that this power embraced not only a vast number, but a great variéty of subjects, some requiring a uniform rule, and others, like that of pilots, demanding a diversity of. . . . „ regulation, to meet the local necessities ot navigation; and in view of the legislation of congress on the particular subject, it was decided by a majority of the court, 1st. That the mere grant of the commercial power to congress, did not deprive the states of the power to regulate pilots; and, 2d. That, although congress had legislated upon the subject, its legislation manifests the intention, with a single exception, not to regulate this subject, but to leave its regulation to the several states.

5. The power regulate ferries? and grant ferry thelr^own cití zens, where stream divides no? be questioned; at feast unshall legislate afa^questíon'°"

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 them at all, it can only be for national purposes, and under a power expressly given for a particular purpose, or clearly incidental to some power expressly given.

6. The act of Congressof 1793 and 1838, or 1852, requiring steamboats to obtain license, &c., does not ap ply to ferry boats. No intention hasbeen manifested by Congress to assume the control of ferries, or the legislation of the States on that subject.

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 our western rivers, was especially induced by the many disasters, involving to a frightful extent the loss of life or limb, which had occurred in the longer voyages up and down the rivers, and it was to afford better security against such disasters, arising as they did, from the insufficiency of the boat, or its engine, or equipments and officers, that the inspection, enrollment, and licensing of steam vessels were required, and other provisions made, for the same purpose.

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 for carrying on that commerce, under color of regulating which, the authority must be supposed to have been granted. We cannot concede that any such authority was intended to be given, nor can we concede that if given in the manner and under the circumstances stated, it would be valid for the purposes claimed.

7. A steam ferry boa,t acting under a license obtained under the act of Congress on this sub ject,hadno right in virtue of such license, to interfere with the ferry privileges of the appellees, held under the State authority.

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. And the 44th section expressly repeals all parts of laws therefore made, which are suspended by, or are inconsistent with this act. This act, then, which covei’s the whole subject, referring only to the penalties of the act of 1838, for non-compliance with the provisions of the act of 1852, is considered as super-ceding and in effect repealing the act of 1838. And if it is not to have this technical effect, it shows, at lea«t, when taken, as it should be, in connection with the previous act, that it was not intended that either should apply to steamers used as ferry-boats. And the fact that in 1838, steam ferries were little used, may account for the failure to exclude them from that act. It was certainly not intended by the last act, that any steamer should be licensed merely upon compliance with the provisions of the first, for this would be directly inconsistent with the first section. And as the last act does not apply to steam ferry-boats, there is no authority for licensing such a vessel under either act. It would be very strange, then, and as we think, inadmissible, to suppose that while no license can be granted to a steam ferryboat, under the law's relating particularly to vessels propelled by steam, such a license could be granted under laws for regulating the coasting trade, passed before steam vessels were in use, and which, at any rate, make no particular reference to them. The act of 1838 requires a new enrollment of steam vessels, under then existing law's, and a new license under the conditions imposed by those laws, and by that act. The act of 1852 prohibits any enrollment or license of steam vessels, but upon terms prescribed by that act, which terms had not been required by any previous act, and do not apply to steam ferryboats. The Commodore' appears to have been inspected, enrolled, and licensed in 1854. Whether her owners complied wfith the act of 1852, it is not deemed material to inquire. If they did not, we suppose her license, being obtained in violation of law, is of no avail. If they did, her license to be employed in carrying on the coasting trade, unde” the laws regulating that trade, which, so far as we can discover, never have been understood to confer the right, ferrying, properly so called, did not, in our opinion, confer upon her or her owners the right of transporting persons and property, as a ferry-boat, between Newport and Cincinnati, to the disturbance of the ferry established' there, and- to the injury of those entitled to it.

t 8. Apian of a town laid out up on a navigable ”™re’ g^ownup^ on the plat be- and the river,indlcatl.nS lts aP' propriation to public use; and ^i(1g,!e sach°a plat, are tireumthe absence of ovideneedwhioh show a dedicagp°anoe to puWie "3e- TI;(d1Sli the establishmentbytheprory^'upo'n a that space would be show a reservaj^thíexteñt^f the unintemiptR^for^at^ur* Pose- And after-an acquiescence in such claim ^irt™years!can not be questioued. (8B.Mon-r0c,258.)

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. consideration of the advantage of having a ferry, to which no other individual but the original proprietor was entitled. The ferry right was, doubtless, the principal object of the reservation, made in the 7th section of the act of 1795. And although there may have been no precise notion on any side, of the uses of the space next to the river, declared to be for a common, the visible ferry carried on by the proprietor, must have apprized all concerned, that the ferry right was intended to be reserved. The acquiescence in the. act thus understood, and in the right of ferrying claimed and exercised under it, is sufficient, not only to establish the presumption of consent at the time, and perhaps of an original reservation, but to establish the right itself, as against the town. And as during the entire period, the ferry has been carried on by the Taylors, under claim of title, for their own .exclusive profit, without the recognition of any right or interest in the town, to the proceeds or any share of them, and, so far as appears, without even a claim of that sort on the part of the town, we are of opinion, that by the lapse of time alone, if there be no other ground, all claim on the part of the city of Newport, not only to the legal right to the existing ferry, but to the beneficial interest in its proceeds and profits, is barred and extinguished, if it ever existed'-

9. The dedication of land by a proprietor, of lands laid out as a town, on a navigable river, to be a common, confers the right on the public authorities of thetownto build wharfs and charge wharf-age.

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, upon the same question between the same parties, to depart from a construction thus doubly sanctioned, nor should we do so upon any question to which it was directly applicable, but upon grounds of absolute certainty and conviction. It will be recollected, however, that in the cases referred to, nothing was in contest but the right of ferry, and that which was essential to it, and the only point really decided, was, that the town and city of Newport had no such title or interest in the open slip on the river, as carried with it the right of ferry, or authorized the grant of a ferry to her. The question, whether the legal title was in the town or in Taylor, may have been neces sarily decided. But the question, what other rights, exclusive of the legal title and of the right of ferry, the town and city were entitled to, either under the original dedication, or under the declaration made in the 7th section of the act of 1795, was not before the court for decision, nor necessary to the determination of any point actually presented. The court, it is true, in the first of the cases referred to, not only decided that the title to the slip in question, was not in the town or its trustees, and consequently remained in Taylor, and that the right of ferry from the town, was reserved to Taylor by the act, and that the title and ferry right had .passed to James Taylor of Kentucky ; but also restricted the rights of the town in the open slip on the river, to a mere light of common, which, though not defined, is understood to have been used in its technical sense, and declared that the reservation to Taylor included all rights not incompatible with the right of common, spoken of in the opinion, as the commonable right of the town. But the only question was, whether the town had such right or interest in the land, as was requisite to entitle it to the grant of a ferry. And the conclusive adjudication, that such right was not in the town, but was reserved to Taylor, might still leave in the town all other rights and uses, not incompatible with the reservation of the right of ferry in front of the town, and which might still be properly claimed, under the dedication of the slip, whether by the plat or by-statute, as a common for the town.

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 understood in this latter sense by the supreme court of the United States, in the case of Cincinnati vs. White’s lessee, 6 Peters, 435, and by this court, in the ease before referred to, of Rowan’s executor vs. Portland, and in Giltner vs. Trustees of Carrollton, 7 Ben. Monroe, 680, and Kennedy’s heirs vs. Covington, 8 Dana, 61. In which cases, and in others referred to therein, and in Fox vs. Town of Dover, 9 B. Monroe, 200, and Alves vs. Town of Henderson, decided at the last term, the doctrine generally applied by this court to the question of dedication in the establishment of towns, is to be found. Then not feeling ourselves bound by the interpretation heretofore given by this court to the word “common,” as used in the plat, and in the act of 1795, except so far as that interpretation may be necessary to explain or to sustain the decision as to the ferry right, we are of opinion that the dedication of the slip of ground in question, as a common, by the plat of 1795, and by the act establishing the town, was a dedication of it as public ground, for the convenience and accommodation of the town and the public, and for such appropriate uses, exclusive of the ferry right in Taylor, and not inconsistent with it, as are to be implied in the dedication of a narrow slip of open ground between the lots and a navigable river, which include the right of constructing wharves and charging wharf-age, which has never before been in contest between these parties. It is scarcely necessary to say that, in our opinion, the reservation to Taylor confers no new right not already existing m him, either because it had not been parted with, or because it had been expressly, or tacitly, retroceded by those who might have been entitled to it.

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 the general acquiescence in the reservation of the right by that act, and from its exercise under claim of right, and without dispute or counter claim, for more than thirty years, and is regarded as conclusively established by the decisions of this court, and by its continued exercise to the present time. On the other hand, the evidence establishes the fact, that for all appropriate public purposes, except those pertaining to the ferry, and the right of ferry, the slip in question, though Taylor may have claimed the legal title since 1799, has been used bjr the town, and its inhabitants, and the public, without disturbance, with scarcely the shadow of a counter claim, and with the general acquiescence of Taylor, and those claiming under him, from the earliest history of the town. And this user, the particlars of which have been before stated, we consider not only as sufficient to sustain the public right under the dedication, but as being in itself sufficient'to establish a dedication. As against James Taylor, the patentee, and his heirs, it might be assumed that the legal title passed to James Taylor, his son, if not by the deed of 1799, by long user and claim of the ferry right as transferred by the deed of 1799, and at least to the extent necessary to sustain that right. But in whoms oever it may have been, and to whatever extent it was held to his use, so far as the ferry right was concerned, and be yond that, to the uses of the dedication.

10. A license under the United States to a coasting vessel, confers no right to transport passengers from one side to the other of the Ohio as a ferry boat, and no authority to transport passengers from the Kentucky to the Ohio side of the river Ohio, with out a [license from’ the authorities of Kentucky.

It follows from these views, that in our opinion there was no error in dismissing the claim of the complainants to an account of wharfage, and the counter claim of the city of Newport to an account of the profits of the ferry. Nor do we perceive any error in the refusal to decree a conveyance of the Esplanade, or any part of the slip, to the city, because if the legal title be in the complainants, or either of them, the unqualified conveyance prayed for might impair the ferry right, to which the city is not entitled, and a qualified conveyance is neither called for, nor necessary to the enjoyment of her rights; and because, more especially, if James Taylor, the testator, had the legal title to any extent, or farther than was necessary to sustain the ferry right, the parties by whom it could be conveyed are notbefore the court. And to this extent the judgment is affirmed on the original and cross appeal. But the judgment is erroneous in the extent to which it perpetuates the injunction, and to which it restrains the Commodore, and the defendants, in landing upon the slip in question, persons and property transported from the Ohio shore; and in adjudging, as ■ it seems to do, the exclusive right of ferrying, from both sides of the river, to be in the plaintiffs alone. The transportation, as carried on, was illegal, and properly in-joined, and the injunction should have been perpetuated against future transportation of a like kind, either under color of any license obtained, or to be obtained, from the authorities of the United States, under the existing laws, or without such license, unless authorized to transport from the Ohio shore, from a ferry established on that side under the laws of that state, and they might have been restrained or prohibited, under all or any circumstances, from transporting persons or property from this to the other side, within the interdicted distance above or below an established ferry on this side, unless authorized under the laws of this state to do so; and the exclusive right of ferrying from the Kentucky side, should have been declared to be in the plaintiffs.

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.  