
    
      Kennedy vs. The Trustees of Covington.
    
    October 13.
    Error to the Campbell county court.
    
      Ferry. Errors of fact. Appeal. Record. Reservation of ferry rights. Trustee. County court. Bill of exceptions.
    
    ' Ferry. Case 152.
   .Judge Underwood,

delivered the opinion of the court.

In March, 1828, the county court of Campbell, on the motion of the trustees of the town of Covington, established and granted them a ferry across •the Ohio-river, “from the town of Covington, at the pub-lie wharf or landing, on the bank of said river, in said town, to the city of Cincinnati, on the opposite shore, it appearing to the satisfaction of the court, from the evidence that the said trustees have the legal title to-the land along the Ohio river, opposite the said town.” Samuel Kennedy opposed the motion, because, among other reasons, the establishment of a ferry in behalf of the trustees, conflicted with a ferry right previously granted to him, &c. The trustees having succeeded, Kennedy has brought the case to this court by writ of error.

Unsuccessful applicant for a ^appeal to"1 this court,. assign errors ,°ntroducenew evidence to support them; fu/^o«!i-eSS* cannot.

Various questions of importance have been presented. They will be disposed of in order. It was.con-, tended on the part of Kennedy, that he had a right to assign errors of fact in this court, and to introduce new evidence in support of them.

A majority of the members of the court.think he has no such right. County courts had no authority until the passage of the act of 1806, to establish ferries across the Ohio river. There is no provision in the act 1806, or in any subsequent or prior act which sanctions the opinion advanced, unless it be the act of 1798. Upon examination of that act, it will be found, that it allows an appeal to the unsuccessful party, who may be the applicant for a ferry, and'allows him or her to plead matters of fact as wefl as law. The privileges secured by this act, are confined,, by its terms, to the applicant for the ferry, and we know no principle which would sustain us in extending them to the party opposed to the establishment of the ferry, who may be unsuccessful.. Were we to doit, it would be an exercise of legislative power, which is inhibited by the constitution. The case of the trustees of the Jefferson Seminary vs. Wagnon, I Marshall, 243, and II Marshall, 379, has been cited as authority in support of the position,.that Kennedy ought now to be permitted to plead matters of fact. It is true, that the court heard evidence touching the title in that case; but it was not intended, we apprehend, that it should operate further than to test the right of the plaintiffs in error; to prosecute their writ. The report of the case in I Marshall would give it that limitation. In II Marshall, it is decided, that no one is entitled to the grant of a ferry across the Ohio, unless he own the land from which the ferry is established. It Was manifest, independent of the decision of the issue of fact, in regard to the title, that Wagnon did not own the land. The decision must, therefore, have been against him, upon principle, and the only use that ought to have been made, or could' legally have been made of the trial of the issue, was to demonstrate the right of the trustees to prosecute their-writ. We have-been compelled, therefore, to examine this case upon the record alone, without regard to any extrinsic matter. Any fair interpretation given to the order of the county court, establishing the ferry, must'take along with it, the idea, that the trustees of Covington owned the land from which the ferry is established.

Ia establishing a ferry, the record must state such, a case as was necessary to warrant the order of establishment made by the court.

The record presents such a state of case, then, upon its face, as warranted the court in establishing the ferry. If the record had not done so, it would have been error; Lawless vs. Reese, I Bibb, 496. Unless it can he shown, that there is enough apparent on the record to disprove the title in the trustees, which the order states, (having come to the conclusion, that wc cannot now hear -evidence relative to the title, for any other purpose, than to test the interest of a party, in respect to. the prosecution of a writ of error,) it will follow clearly,, that the decision of the county court must be affirmed. The counsel for Kennedy, have, accordingly, laboured to show that there is enough on record to disprove th.e title of the trustees. It may be here proper to remark, that the record does not purport to exhibit all the evidence which was presented to the county court. We shall, however, examine that which was given, and inquire how far it tended to show, that the trustees of Covingfon had no title. The evidence consisted of a deed from Thomas Kennedy to the proprietors of the town; the act of assembly vesling the title to one hundred and fifty acres thereof, in trustees; (V Littell’s Laws, 282,) and a plat or map of the town, acknowledged before the clerk, on the 31st of August, 1815, by the proprietors, and admitted to record. The deed from.. Kennedy does not give the courses, distances, and corner trees of the tract conveyed; nor does it call to bind on the Ohio river. It refers to the land conveyed, as lying at the junction of Licking and Ohio rivers, on the lower side of Licking, being the same land conyeyed by James Welsh to Kennedy, excepting so much as. Kennedy had conveyed to Joel Craig, and consisting also of the land which said Craig, by deed, dated in January, 1809, conveyed to said Kennedy. The land conveyed was estimated at two hundred acres, more or less. By the. act of assembly, one hundred and fifty acres are vested in trustees, for a town. By the explanatory notes constituting part of the map of the town, it is said, that “the surplus or remainder of the purchase or tract of land, after the appropriation of one hundred and fifty acres for the town, is to remain and lie on the western extremity of the tract.” From this, it follows, that all that part of the tract, lying on the east, (the ■junction of the Ohio and Licking, being the most east-wardly part of the tract,) was included in the bounds of the town. It likewise results, that if the tract extended to, and was bounded by the Ohio, on the east and north east, that the town lands would extend to, and bind on the liver. That this is the fact, is rendered highly probable, if not altogether certain, from other parts of the explanatory notes attached to the map. The map lays down Licking and Ohio rivers, and places the town lots, which are marked with appropriate numbers, approximating their junction to the west of Licking, and south of the Ohio, extending up lucking and down the Ohio. It is then declared, that “suchpart of the town as lies between the lots and the edge of the bank of the Ohio river, as will appear by reference to the plat, shall remain for the use and benefit of said town, for a common.” Herd is a plain acknowledgment that the town extends towards the Ohio over Front street, which is but fitty feet wide, to the edge of the bank. It is not then, limited to the edge of the bank. That constitutes the limit or boundary for the common, next to the river, qnd the common is in the town, whilst the town may extend yet further, to low water mark. To locate the one hundred and fifty acres for the town, as described in the act of assembly, and to take it out of the tract of two hundred acres, we should do it in the manner which the plat and explanatory notes show it was done, by beginning at or as near the mouth of lucking, on the lower side, as the survey of the two hundred acres would permit, and running thence up Licking and down the Ohio, for quantity.

Taking the evidence, as exhibited by the record, and it is our opinion, that the most rational inference to be drawn f om it, is, that the one hundred and fifty acres vested by the legislature in the trustees, did bind on the Ohio river. It is sufficient, however, as the exceptions do not purport to give the whole evidence, that it does not appear, that said one hundred and fifty acres do not bind on the Ohio. It may bave been clearly shown, that they did, by proof, before the county court, and ■ which is not before us.

Reservation of all ferry rights by grantor of land does not prevent grantee from obtaining estab, lishment of a ferry on the land. Sueh reservation may constitute grantee a ■ trustee of the ferry, accountable for its profits to grantor.

The notes of explanation state, that “the proprietors reserve to themselves, their heirs, and assigns, forever, all ferry rights, &c.and it is contended,, that this reservation is sufficient to defeat the grant of the ferry to the trustees. If the title of the land, on the Ohio, to the water’s edge, be vested in trustees, any reservation of a use by the proprietors, cannot divest the title. It may show that the trustees have no right to take the profits of the ferry, and apply .them to their use, or to the use of the town, but that they hold the ferry and receive its emoluments for their cestui que trusts, the proprietors. The fact, that such a reservation was made, upon the recorded plan of the ft'wn, rather fortifies the view already taken, that the title, to the water’s edge, was, by the act of the general assembly, vested in the trustees. If the proprietors of the town held a strip of land, between the town and the river, to which the trustees never had title, the reservation of ferry privileges upon the plan of the town, was an useless thing; for there would be no pretext for the trustees or any others, except the owner of the land, to the water’s edge, to assert any claim conflicting with the rights of the proprietors, It does not appear at what time this reservation was first made or announced. There is nothing in the record, upon which the argument can be based, that makes the act of the legislature, connected with this reservation1^ so operate, as to secure the title, on the margin of the Ohio, to the proprietors. From what appears, the reservation was subsequent to the act of the legislature.

The individuals who, as trustees, executed the ferry bond, are entirely different from those in whom the title-to the one hundred and fifty acres was vested, by the act of the legislature.

It has been contended, under the authority of the case of the-trustees of Falmouth vs. Hoster, IV Litt., 121, that the individuals who executed the bond, cannot hold the ferry, because it does not appear that they were the successors of the trustees named in the act of the legislature, or that they were appointed in their place, and vested with the title by any competent authority. This a gument would merit a close investigation, if the exceptions had declared that the evidence spread on the record, contained the whole given on the trial. But it may be, for aught that appears, that the tfustées mentioned in the statute have died or removed, and that the individuals who executed the bond, have been legally appointed trustees, and vested with the title by the county court, under the general law concerning towns. The argument, therefore, in the present aspect of the case, is without weight. It is contended, that the' trustees were bound to show, that the land conveyed by Kennedy to Craig, andwhich was excepted in his conveyance to the proprietorsof the tdwn, was located so as to leave them the title to the land, on the margin of the Ohio. If this be conceded, there is nothing in the record which proves they did not do it. We are bound to presume that it was done, if it were necessary, because the court states that the trustees had the legal title to the land, along the river, and nothing appears in the exceptions to contradict it.

Bill of exceptions to opinion of the county court must be sign’d by a majority of the justices who sat on the trial. If, after deciding the. cause, a number of the justices abandon the bench and will not remain to sign a bill of exceptions, such abandonment being stated, * will justify the by-standers in certifying the| bill of excep-' tions. Such conduct, by the justices, is equivalent to a refusal to sign the bill of exceptions. If a bill of ex-ceptionsto judgment of the county court bo signed by less than a majority of the justices who presided on the trial, the case will be decided in this court, as tho’ no bill of exceptions had been taken.

The case of the trustees of Maysville vs. Boon, is a sufficient answer to many of the errors assigned and relied on. It is deemed unnecessary to notice such as are answered by the principles settled in that case.

The view taken has resulted in the conclusion, that the order of the county court, establishing the ferry, must be affirmed. There is, however, a point made by the counsel for the defendants in error, which, if there were no other, would alone be sufficient to prevent a reversal of the order. The bill of exceptions is signed by only two of the justices. The trial took place before eight. The act of 1798, (I Dig., 188,) taken from a Virginia act of 1789, expressly requires, that the Justices, or a greater part of them, shall sign the exception. If they will not, the act of 1793, and of 1800, prescribe the remedy. Now, we are not willing to act upon an exception, signed by two justices out of eight, who adjudicated in the case. To do so, would be to dispense with a part of the act of 1798, without any necessity fordoing it; for if five of the eight would not sign, the plaintiff in error had the right to call upon three bystanders, and to proceed as directed by the acts of 1793 and 1800. If, upon deciding the controversy, a number of tire justices abandoned the bench, and would not remain'for the purpose of signing an exception, we are of opinion* that such abandonment being stated, would justify the bystanders to certify the exceptions. Such conduct on the part of the justices would be highly exceptionable, and would, in our estimation, he equivalent to a positive refusal to sign-. There is nothing, whatever* in the record, which will justify the least imputation upon the propriety of the conduct of the justices who decided the cause. We cannot perceive that they were influenced by any partiality for -the trustees, or any prejudice against the plaintiff in error. We cannot presume that they had any improper motive in withholding their signatures from the bill of exceptions. As then, the number required by law, have not signed, the legal presumption is, that the bill of exceptions was so deficient and erroneous, that they would not sign it. Consequently, the case ought to be decided here, as though there was no exception whatever, signed by any any of the justices.

Ricardson, Mills and Brown, for plaintiffs; Denney, for defendant.

The order of the county court is affirmed, with costs*

Chief Justice Robertson

dissenting from the opinion of the majority of the court, delivered his own opinion.

The act of 1798,1 Dig. 590, declares that “it shall and may he lawful for any person applying to the county court to establish a ferry across any water course, he she or they so applying, owning the land on one or both sides of the said water course, (as the case may be,) if the court shall refuse to establish the same, according to law, the person so applying and thinking him or herself aggrieved, shall have, the right to appeal to the court of appeals, and may plead matters of fact as well as law, any law or usage to the contrary notwithstanding.”

When the former opinion was delivered in this case, the court was of opinion that the act of 1798, gave to either party the right to assignors of fact, and therefore, having, without objection, heard extraneous evidence, proving that the title to the land on the rivet, where the ferry was established, was in Kennedy and ' not in the trustees, reversed the order of the county court. On are-hearing, a majority of the court entertain the opinion, that the act of 1798, restricts, to the applicant, the right of assigning errors in fact, and therefore, as the record states, that the title was in the trustees, disregard the extrinsic testimony and affirm the order.

.My first opinion remains unchanged.

I acknowledge that a literal interpretation of the statute of 1798, will not allow Kennedy to go out of the record. ‘But I am satisfied that the spirit and end of the act oppose this construction. The rights of parties litigant, should be reciprocal. And no statute should be strictly construed, so as to give to one party, essential rights, which it withholds from his adversary.

Such invidious discrimination would be subversive of a fundamental principle of justice and of the common law, and would be flagrantly inconsistent with the spirit of our institutions.

If the applicant fail in the county court, he may assign errors in fact; may not the adversary party, if there be one, repel the extrinsic evidence, by the production of the like evidence ? This will hardly be doubted.

But suppose the applicant do not own the land, but, on an exparte application to the county court, shall prevail on the court to decide that he has title, and therefore, to grant him a ferry. The record exhibits no documents or other evidences of his title. The owner of the land, when informed of this infringement of his rights, applies to this court for redress. He is allowed to make himself a party, and to prosecute a writ of error, by proving uliunde, that the title to the land is in himself and not, as the county court said, in the grantee of the ferry. But when he shall have done all this, he is told that the order of the county court is immutable and intangible because it states that the grantee has title, and because the applicant for a ferry, has alone the right to question the record, by the production of extraneous proof! If this be true, then, although no person but the owner of the land, is entitled to a ferry on the Ohio river, nevertheless, if any other person can obtain an order for a ferry and a recital, in the record, that he owns the land, there is no mode of procedure allowed to the owner, for reversing the erroneous order.

This I cannot admit. I am bound to believe that the legislature intended by the act of 1798, to give to the party “aggrieved” whether applicant or not, the right to assign “errors in fact as well as law.” There was no motive for granting so important a privilege to one party, and denying it to another; for liberating the one, and putting “hand cuffs” on the other.

The act speaks of applicants, “owning the land.” Shall a suggestion, by the county court, that an applicant is the owner, be conclusive evidence that he is, whilst a decision, by the county court, that he is not, may be reversed by proof, out of the record, that he is. For such inequality and incongruity, no reason can be imagined; and therefore, I cannot admit that the legislature intended to produce it.

In this case it is admitted, that the documents of title, 'exhibited in the record, are insufficient to sustain the order of the county court. But this court presumes that there Avas other and sufficient evidence. The record contains no evidence, of Kennedy’s title. And whilst the order is helped by presumption, Kennedy is not permitted to counteract the presumption by positive proof, although the trustees would have been permitted to combata decision of the. county court against them, by introducing extraneous evidence to show that the title was in them and not in Kennedy.

The phraseology of the act of 1798, is loose, ambiguous and ungrammatical. I Avould not, therefore, feel inclined to give, as literal a construction, as it might be entitled to, if it had been drawn with more care and precision. But if it had been ever so exact and explicit, I should be strongly inclined to construe it as applying equally to either party litigant, unless it had contained express negative words. It would be safer to infer in advertance in the use of words, than to impute to the legislature an intention to withhold from one party Avhat they accord to his adversary.

All that is necessary to make the statute literally apply to both parties, is the substitution of the disjunctive “or” for the copulative “and;” or the interpolation of the words, the person, between the copulative and “think----ing;” and the insertion of the words by an order of the county court, after “aggrieved.” The act would then read; “the person so applying, or thinking himself aggrieved (by an order of court,) shall have the right, &c. or it would read; “the person so applying and {the person) thinking himself aggrieved (by an order of court) shall have the right,” <^c. thus meaning, that any person aggrieved may assign errors in fact. And such, (in my opinion,) should be the construction of the act. Because, I must believe that such was the intention of the-act of 1798.

1 do not consider it proper to discuss the subject in ex-tenso. I have intended only to exhibit the outline of the general view, which induces me to dissent from the opinion now rendered, and to adhere to that which it overturns.

I believe that the object of the legislature was to allow the assignment of errors in fact, in ferry cases, just as it had been allowed in cases of Mills’ wills and roads.. But that, as it would not often happen that any person, but an unsuccessful applicant, would desire to appeal, the act of 1798, omitted to refer expressly to a complaining . party who was not the applicant for the ferry; although the legislature intended that, in all such cases, the party aggrieved might “plead errors in fact.”

The intention of the legislature, when ascertainable by allowable means, is the act of the legislature, whatever may be the literal import of the language employed.

The-intention of the act of 1798, I have deduced from considerations, paramount, in my opinion, to the mere letter of confused and inappropriate phraseology; and although it is not easy to understand the precise effect of the opinion in the case of Wagner vs. The Trustees of tne Jefferson Seminary, I construe it as an authority in my construction of the act of 1798. But my opinion is not influenced by that case.

I also think that too much has been presumed in favor of the title of the trustees.  