
    Alves’ Executors and Heirs vs. Town of Henderson.
    APPEAL FROM HENDERSON CIRCUIT.
    1. Where one of several tenants in common aliens part of the land the purchaser will not be disturbed in his possession, if the other claimants can be satisfied as to their interest out of the remainder.
    2. A portion of the grantees of the company to whom the grant was made, called Henderson’s grant, (see 3 Uttdl’s haws of Kentucky, 585,) by an ordinance, set apart a portion of the grant for the town of Henderson, by a plan set forth in a plat, in which public grounds, streets, alleys, were laid down: held, that the public grounds, streets, alleys; and the space between the lots and the Ohio, were dedicated to public use.
    3. It is not competent for the citizens of a town, by deed, to transfer to an individual the title to, or exclusive use of, the streets, alleys, and public grounds dedicated to the use of the public.
    4. A citizen of a town, by enclosing and holding adversely for twenty years, may acquire exclusive right to a portion of the public grounds dedicated to public use, but the possession and use must be adverse, and the use exclusive.
    Tbe facts of the case are stated in the opinion of' the Court. Rep.
    
    
      /. Harlan, L. W. Powell, and J. W. Crockett, for appedants-
    In presenting our view of" the law of the case, the counsel admit, that by the ordinance of J79-7 there was a valid dedication to public uses, so far as the parties signing the ordinance had title. It is conceived, however, that this dedication was to the local public of Henderson, in which the general public had no vested interest. In the case of McQuillin's heirs vs. City of Lexington, 9 Dana, the doctrine is recognized that the commonwealth is, in legal contemplation, sub-divided into subordinate communities, or quasi corporations — as counties, cities, and towns— each vested, to a prescribed extent, with sovereign power. For what object was the dedication made ? Surely for the comfort, convenience, and enjoyment of all those thus composing, or who should thereafter compose, the local public or sovereignty of the town of Henderson. It never was the intention of the parties making the dedication to vest in the general public an interest in the property, that would enable the general public to thwart, defeat, or obstruct the wishes of the local public. The history of the legislation in this state clearly establishes the fact, that in the opinion of the legislative department of the government, a street or alley might be closed by consent of the town or city composing the local public through which such street or alley passed.
    It is considered, upon the authority of the case of Rowan's executors vs. The Town of Portland, 8 B. Monroe, that each citizen and lot holder acquired an easement, privilege, or franchise, in the public grounds and streets thus dedicated, but it is insisted that it was an interest of which they might divest themselves by deed. The doctrine is well settled, that this privilege, easement, or franchise, will be lost by twenty years’ non-user, especially when during that period individual acts of ownership are shown inconsistent with the rights of those to whom the dedication is made. This doctrine is predicated upon the presumption of a grant or deed: “The possession of land for the length of time mentioned in the statute of limitations, under a claim of absolute title and ownership, constitutes, against all persons but the sovereign, a conclusive presumption of a valid grant.” {Greenleaf on Evidence, volume 1, page 79, section 16; Dudley vs. The City of Frankfort, 12 B. Monroe, 610.)
    If the counsel is correct in supposing that the dedication in this case was to the local public of Henderson, and that that local public could alienate, the question arises how they parted with their title. It is true that all did not sign the deed, but it is likewise true that all sanctioned the agreement. The deed of relinquishment from Alves, Hart, &c., to the lot-holders of Henderson, and the deed of the citizens to Alves, Hart, &c., and the deed of relinquishment from Buck and wife to the lot-holders, all set forth the fact that Water street had been reduced from 200 to 125 feet in width, and that the cross streets run to the waters edge; and the deed from the citizens and lot holders to Alves, Hart, &c., has an amended plat of the town attached, which is recorded as part of it, showing the reduction that was made, &c.
    The deed from Buck and wife to the lot-holders recognizes the compromise made with Alves, Hart, and others, and after referring to the original plan of the town, as exhibited in plat A, contains the follow-clause : “The only exception to the plan or plat aforesaid is that the street nearest the river, commonly called Water street, is agreed upon by all parties shall be reduced to the width of 125 feet, instead of 200 feet, as marked out in said plat.” (See page 12, of the additional record.) This deed from Buck and wife was made to all the lot-holders of the town of Henderson ; and the recital in the deed, that all parties consented to the reduction of the width of Water street, when taken in connection with the fact that ail the deeds made in 1825, touching and concerning the compromise, specially acknowledged that the width of Water street had been reduced,. and an amended plat of the town was recorded, showing the fact, tends very conclusively to show that all the lot-holders did consent to the reduction of said street.
    A period of twenty-five years elapsed from the date of the compromise to the institution of this suit, during all of which time the proof is conclusive that appellants have had possession of at least part of the ground in controversy — indeed they were actually possessed of the strip of land on the river, between 2d and 3d cross streets, above the public square, on which the trespass was committed, for a period of over twenty years before the commencement of this suit. It is insisted that after such a great lapse of time, accompanied by such possession, that a grant from all the citi'zens must be presumed. (Greerdeaf on Evidence, vol. 1, section 16; Craig vs. Austin, 1 Dana, 517 ; 6 Monroe, 608.)
    We invite the attention of the court to the proof in the case, from which we think it clearly appears that James Alves was in the actual possession of the river front, conveyed to him by deed of the citizens in July, 1825, and by the deed of Talbott and Ormsby, commissioners, in 1826, particularly that part of the river front between Water street, as reduced by the compromise, and the river, and between 2d and 3d cross streets, above the public square, and that part of the river front between lots 33, 36, and 37, and the river, since 1828.
    On the 20th of February, 1828, James Alves leased to James W. Marshall the ground on the river front embraced in his deeds from Talbott and Ormsby, commissioners, and citizens of Henderson. Marshall kept a wood-yard on that part of it between 2d and 3d cross streets for a year or two, and fenced in a part of it, which fence remained there until about ’43* He also occupied the ground between 3d and 4th cross streets as a wood-yard, and enclosed the property in front of lots 33, 36, and 37 — which last mentioned lots were then owned by Marshall, and occupied by him as a residence — which portions of the river front, in front of lots 33, 36, and 37, he held by actutual enclosure until he sold his property adjoining, to Anderson, and the possession passed to Anderson, and Anderson has held possession, by actual enclosure, ever since. Anderson having acquired possession from Marshall, Alves’ tenant, continued to hold, and now holds, as Alves’ tenant. (4 Bibb, 34; 4 Bibb, 524; 13 B. Monroe, 481; 4 Dana, 519; see lease from Alves to Marshall, and Bennett G. Marshall’s deposition.)
    After Marshall ceased to keep a wood-yard, Alves kept a wood-yard on the river front, between 2d and 3d cross streets, for several years, up to about 1832 inclusive — see depositions of J. S. Hart, Samuel Butler, Lewis Rouse, and David H. Cowan. In September, 1833, Alves leased this property to John Anthony, until 1st January, 1840; Anthony was to build a house on it, and was, by express terms of his lease, to hold possession of all the land claimed and held by Alves on the river front. Anthony built the house between 2d and 3d cross streets, and occupied it for a few months, and then transferred it to William Anthony, who held and occupied it until the expiration of the lease, in 1840, when the possession was surrendered to Alves — see John Anthony’s lease from Alves, and deposition of Mrs. Ellen J. Anthony.
    In 1840, 41, 42, 43, 44, 45, 46, and 47, Alves rented the house which had been built by Anthony, to various tenants, who occupied it during those years— see deposition of John B. Burke. In 1848 the house fell or was thrown down. In 1840, David R. Burbank leased the ground on the river front, or a part of it between 2nd and 3d cross streets, above the public square, from Alves, and immediately built a warehouse on it, which he has occupied ever since as Alves’ tenant — see Burbank’s deposition. Clarke & Co., tenants of Alves, were in possession of a part of the property between 2d and 3d cross streets, (the part-cm which the waste was being committed,) and had a coal-house on .it when this suit was brought— see deposition of David Clark. It is proved by Geo. Atkinson, (see his deposition,) that he never knew the ground between Water street, (as reduced,) and the river, used as a public highway; and that James Alves had exercised acts of ownership over it for upwards of twenty-five years. He also states that the ditch cut along Water street was cut before 1825, and that he has kept it open ever since ; that ditch is on or about the line of Water street, as reduced by the compromise, and between Water street and Burbank’s warehouse, Clarke & Co.’s factory, and the house built by John Anthony — which tenements are designated on the plat made part of H. J. Eastin’s depositions by marks B or 3,4, and 5. Young E. Allison, (see his deposition,) states that Alves claimed and occupied the river front.
    From the evidence recited, it will be seen that the wood yard kept for a year or two by the tenant, Marshall, under lease of 1828, and the wood yard kept by Alves and Hart for two or three.years, the house built by John Anthony under lease of 1833, and afterwards occupied by Wm. Anthony, to whom the lease was transferred, until the lease was fully ended in 1840, was on the ground between 2d and 3d cross streets, above the pubiic square and Water street, as reduced by the compromise, and the river. That immediately on the expiration of Anthony’s lease, Alves was restored to the possession of the house, and rented it for seven consecutive years, until the house fell down in 1848. In 1840 Alves leased a portion of this river front between 2d and 3d cross streets, which had been covered by Marshall and Anthony’s leases, and occupied by Alves and Hart as a wood yard, to D. R. Burbank, who immediately built a warehouse on it, and has occupied it ever since. In 1850, the time of the commencement of this suit, Alves, by his tenants, Clarke & Co., was in the possession of the part of the ground on which the waste was committed. It is proven, beyond a doubt, that the ground between 2d and 3d cross streets has been in the actual, continued, and uninterrupled possession of Alves from 1828 until the commencement of this suit, a period of more than twenty years; every house and tenement on it was built and occupied by Alves’ tenants, a less continued and unbroken occupancy than the one proven we conceive would bar an ejectment. It has been held by this court that “any act of the landlord, after his tenant has left the premises, indicating an intention not to abandon but to hold possession, ought to go to the jury, and would justify them in finding a continued possession.” (Brumfield vs. Reynolds, 4 Bibb, 388.) This is, we believe, in accordance with the current of decisions in all the other states' In South Carolina it has been held, “when the tenement is left vacant for a short period, upon the quitting of a tenant the possession of a landlord will be deemed to have been uninterrupted, if he takes possession in a reasonable time.” (Wilson vs. McLaughlin, McMul. Ch., 37.)
    Every act of Alves in regard to the possession of this property, indicated his intention to hold the possession of the entire river front to the extent covered by his deeds, and no act of his indicated an intention to abandon the possession. “It is well settled in Kentucky, and in the Supreme Court of the United States, that a possession which will bar an ejectment is also a bar in ¡equity.” {Hunt vs. Wickliffe, 2 Peters, 201; 6 J. J. Marshall, 215; 3 Littell, 382; A Mon., 355; 3 J. J. Mar., 15; 5 Monroe, 93; 3 Monroe, 40.
    Alves entered on the possession of this land, under deeds from the citizen of Henderson, and from the commissioners, Talbott and Ormsby, which deeds marked his boundary; and when he so entered he was possessed to the extent of his boundary, and held adversely to the grantors and all the world. “A person entering on land, claiming by marked boundari.es, is in possession to the extent thereof, although the person making the deed had not a title.” (Thomas vs. Honoré, 4 Bibb, 563; Henry vs. Clark, 4 Bibb, 426; 1 Marshall, 375, 453; Jones vs. Child, 2 Dana, 29.) “An owner of land placing a tenant on it, in order to hold possession, not limiting the possession to any specific boundary, thereby acquires a possession coextensive with his claim.” (Jones vs. Child, 2 Dana, 28; 2 Marshall, 515.) It being evident that it was the intention and object of Alves to take and hold possession of the entire river front, when he leased to Marshall in 1828, and having had actual and unbroken possession by his tenants, Marshall and Anderson, who entered and held under said lease, we conceive that he has been in possession of the entire river front, to the extent of the boundary of his deeds, from the date of the lease to the commencement of this suit.
    The appellees prove that the factory of Clarke & Co., below the landing, and below Mill or 2d cross street, above the public square, has been in the possession of the tenents of the trustees of the town of Henderson from the date of the compromise, in 1825, to the commencement of this suit. That fact we do not question. Alves never claimed to have possession of the ground on which the factory of Clarke & Co., below the landing and 2d cross street, is located. That piece of ground had been leased by the trustees of the town to Thomas Piers, &c., for ninety-nine years, before the compromise was made, which lease is expressly recognized in the deed from the citizens to Alves and others. Some of the witnesses speak of Audubon and Berthoud as having had possession as the tenants of the trustees of the town, of the property now occupied by Clarke & Co., as a factory, below 2d cross street. Audubon and Berthoud were members of the firm of Thomas Piers,' &c., and built a mill on the ground below 2d cross street, leased to them by the town, which is now occupied by Clarke & Co., as a tobacco factory. The factory of Clarke & Co., above 2d cross street, was built by those claiming under Alves, and has been and is now held and occupied by them.
    James Rouse, in his deposition, speaks of the citizens of the town getting sand from the river bank, and of the trustees collecting warfage along the entire front of the town; the fact that the trustees collected warfage, or that the citizens got sand from under the bank of the river, did not interfere with or divest Alves of his possession to the land on the bank of the river. All the cross streets, each one hundred feet wide, run to the waters edge, and were not conveyed to Alves by the citizens. In their deed to him and others the cross streets are expressly reserved as highways to the water edge, and also in the act of 1827, ratifying the compromise and reducing the limits of the town; and it is at the foot of the cross streets the public wharfs are made. The town collecting wharfage along the entire front, could not divest Alves of his possession to the property on the bank and lying between the cross streets.
    The mill spoken of by the witness, Rouse, now owned by James L. Hicks, and referred to, (as No. 9, J. L. Hicks’ mill,) on the plat made part of H. J. Eastin’s depositions, will be seen by reference to the plat, and by reference to Rouse’s deposition, is in 7th cross street, and consequently is not on the land claimed by Alves — all the cross streets, as before stated, extending to the waters edge.
    The statement of Rouse about Anthony’s declarations when he built the house, can amount to nothing. Anthony took the lease from Alves, and built the;house as he had covenanted to do; he transferred it to his brother, Wm. Anthony, who held it under Alves until the expiration of the lease, when he restored the possession to Alves. The witness, Rouse, says Alves claimed the river front, and he acknowledged his title by proposing to buy or lease portions of it from him. We cannot see how the facts stated in his two depositions can be reconciled j there is nothing, however, proven by him that shows that Alves was ever for a moment divested of his possession, or that the trustees ever exercised acts of ownership over this property, or held possession of it.
    The legislative enactment referred to, sanctions, ratifies and confirms the compromise, agreement, and arrangement under which appellants acquired possession, and it must be presumed that all parties interested petitioned for the passage of this act.
    P j. Laws are of two kinds, public and private, and are presumed to be constitutional until the contrary is shown. (See •Cheaney vs. Dunnavan, 9 B. Monroe.) The laws ratifying the compromise referred to are constitutional it is conceived, if the citizens then composing the local public of the town of Henderson unanimously consented to their passage, and it devolves upon those calling in question their validity, to show that vested rights were interferred with against or without the consent of those whose rights are supposed to be invaded. It is conclusively proven that all the citizens acquiesced in the compromise when it was made, and were pleased and delighted that they had, by that means, quieted the title to their property. See deposition of Wm. F. Smith, George Atkinson, Young E. Allison, and Samuel Stites. There is no proof that any citizen or lot-holder of the town was dissatisfied with the compromise at the time it was made.
    In consideration of the compromise the appellants, and those under whom they claim, were induced to surrender a claim to a large interest in the entire town of Henderson, not then barred by the statute of limitations.
    The ordinance establishing said town did not divest the original proprietors of their title; the agent, Gen. Hopkins, was vested with no legal title, but with an agency authorizing him to sell; his acts were only binding and valid on such of the proprietors as ■signed the ordinance establishing the town. There was no law authorizing trustees to be appointed in said town until 1812, and that law, nor any law since passed, has vested the trustees of the town with the title to the streets or public grounds of the town.
    At the time the compromise was made, only a small portion of the lots embraced in the town of Henderson were in the actual possession of any person. Every lot-holder’s properly was .in jeopardy from Alves’ claim; he was in the act of asserting it by suit, and would have done so but for the compromise. The peace, growth, and prosperity of the town, and the interest of all its inhabitants, required that this claim should be satisfied or extinguished. After a lapse of twenty-five years, during all which time the citizens have enjoyed the fruits of the compromise, and a complete legal bar intervenes, which prevents the successful assertion of Alves’ claim, the complainants in the cross-bill come into a court of equity, and ask to be permitted to repudiate the compromise. They, with hands stained with bad faith, invoke the aid of a court which “nothing can call forth into activity but conscience, good faith, and reasonable diligence.”. It is entirely out of the power of the court to place the parties in statu quo, and it is most earnestly insisted that no court of equity should sanction the conduct of appellees. The compromise is acquiesced in and regarded as binding and valid until whatever rights appellants had are lost by lapse of time, and then they contend that the compromise is wholly nugatory. “He who seeks equity must do equity.” In relation to the same subject, the court is referred to the following cases, in which the principle that he who seeks equity must do equity has been applied in practice: (Nelson’s heirs vs. Clay, 5 Littell, 150; Stevensonand wife vs. Dunlap’s heirs, 7 Mon., 146; JRingo, &c. vs. Warder, tyc., 6 B. Monroe, 516; Howard and wife vs. Current, <^c., 9 B. Monroe, 494.)
    Reference is made to the answer of James Alves to show the exact interest owned by him, and to the deposition of Wm. J. Alves and Richard Sneed, by which it is proven that those under whom James Alves holds were the heirs and representatives of the original grantees. Notwithstanding James Alves, after 1826, acquired large interest by purchase in the town, he made no effort to disturb the compromise ; he brought no suit; he claimed the property of no citizen, but adhered in good faith to the compromise. We believe that the law, equity, morality, and common honesty, would alike compel the appellees to adhere to a compromise made in good faith, and acquiesced in by the parties, until the appellants have been by time deprived of valuable vested rights. “The law looks upon compromises with the utmost indulgence.” (Mitchell’s heirs vs. Long, 5 Littell, 72; & Monroe, 424; 6 Monroe, 100.)
    Upon the authority of the case of the Bank of the United States vs. the city of Louisville, and Rowan vs. same, 3 B. Monroe, 144, it is contended, that after the long acquiescence of the appellees in the compromise, sanctioned by recognitions annually repeated by the trustees of the town, for twenty-five years, they should be estopped. In the case above cited, the court says: “Such long acquiescence and multiplied recognitions not only conduce persuasively to establish the validity of the original sale, but should now operate as an estoppel.” It has been held in New York, that “when a person stood by and saw a great and costly improvement made upon land by persons claiming title, and believing themselves owners in fee, and interposed no pretension of title for thirteen years, it was held that he was thereby estopped from making any claim to the land.” (Higginhottom vs. Burnett, 5 Johnson, C. R. 184; Wendell vs. Van Ranselear, 1 Johnson, C. R., 354.) In this case the appellees stood by for twenty-five years, and saw valuable improvements put upon the land, and made no pretensions of title.
    Lapse of time presents an impregnable barrier to relief on the cross-bill. The compromise was made twenty-five years before the commencement of this suit; it has been recognized and acquiesced in by the parties ever since; year after year the property has been assessed for taxation, and Alves has paid tax on the assessments. The trustees and inhabitants have permitted Alves to sell, lease, and improve parts of the land in contest, without hindrance or molestation. They have stood by and seen him expend his money, labor, care, and energy upon this property, in faith of the compromise under which he claims title. To disturb the compromise at this late period, would be a fraud upon appellants. - As sustaining this view of the case the court is referred to the following authorities: (Smith vs. Clay, 3 Brown's Chancery Reports; Henry vs. Dinwoody, 4 Brown's Chancery Reports; Beck ford vs. Wade, 17 Vesey R. 87; Prevost vs. Geoty, 6 Wheat., 481; Hughes vs. Edwards, 9 Wheat., 489; Millers' heirs vs. McIntyre, 6 Peters, 61; Piatt vs. Vatteir,‘39 Peters, 405; Barnett vs. Emmerson, 6 Mon., 608; McConnell vs. Bowdey's heirs, 4 Monroe, 394; Patrick's heirs vs. Chenault, 6 Mon., 318; and especially to Bowman, et al. vs. Wother, et al., 1 Howard Reports, 189; levis vs. Eliza, 7 Dana, 399.
    From the foregoing statement, arguments, and authorities, we conceive the following facts and legal propositions are established:
    1st. The town of Henderson having been established by private individuals, without legislative enactment, and laid off into streets, public squares, &c., the dedication to public uses was only binding upon such of the proprietors as signed the ordinance ratifying and adopting the plan of the town, as laid out by Allen. And such dedication could not prevent the proprietors of Richard Henderson & Co.’s grant, who had not joined in the ordinance and dedication, from asserting title, and recovering their interest in the town.
    2d. That Alves, and those under whom he claimed, had a vested interest in the town, from the recovery of which they were not prevented by said supposed dedication — William Johnson and others, under whom he claimed, never having signed the ordinance establishing the town.
    3d. The compromise having been made in good faith, and Alves and others having transferred to all the citizens and lot-holders their interest in the town, in consideration for the property in litigation, &c., which was conveyed to Alves and others by a large number of the citizens, which conveyance, together with an amended plat of the town, (showing the reduction made by the compromise in Water street and the public square,) was recorded in 1825. Alves immediately took possession of the property in litigation, and has held it ever since, claiming it as his own — the trustees and citizens recognizing his title until the commencement of this suit. After such long acquiescence, accompanied by possession, a deed from all the citizens will be presumed.
    4th. The Legislature of Kentucky having, in 1827, passed an act ratifying and confirming the compromise, an arrangement made in 1825 between the citizens and lot-holders of the town, and Alves, Hart, and others, and reducing the limits of the town in accordance with the terms of the compromise. The citizens and trustees of the town having acquiesced in said act for twenty-three years before the commencement of this suit, the consent of all the citizens and lot-holders of said town, to the passage of said act, must be presumed.
    5th. It not appearing, from the record that any citizens objected to the compromise, or to the passage of the act of the Legislature, confirming and ratifying the same, after this long lapse of time, the consent of all the citizens to the compromise, and to the passage of the act of 1827, will be presumed; and the compromise held binding against the trustees and all the citizens and lot-holders, and the legislative enactments will be held valid and constitutional.
    6th. The citizens and trustees of the town having acquiesced in the compromise for twenty-five years, and the town having recognized the title of Alves by having the property annually assessed for taxation, the trustees altering the assessment, and having the taxes on the assessments collected, they are estopped to deny his title.
    7th. The citizens and lot-holders having received Alves’ title to a valuable vested interest in the town, and acquiesced in the compromise until time would bar Alves’ recovery, the chancellor being unable to place the parties in statu quo, cannot alford any relief to the appellees on their cross-bill: “He who seeks equity must do equity !”
    8th. The trustees and the citizens of Henderson having stood by twenty-five years, and permitted Alves to exercise acts of ownership over the property, claiming it as his own, selling parts of it, and putting valuable improvements on other parts of it, without setting up any claim, or pretending to have any right or title to the same, are estopped from asserting title, and to permit them to do so at this late day would be a fraud upon the fights of Alves.
    9th. Alves having been in the actual possession of the property for more than twenty years before the commencement of this suit, the appellees’ right of entry, if any they had, is tolled, and Alves, by virtue of such possession, is vested with a perfect fee simple title to the land in controversy.
    Lastly, it is contended that this cause must be reversed, because the entire property is decreed appellees, when it is clear, from the proof, that part, at least, had been in the actual possession of Alves twenty years next before the institution of this suit; and to that extent, at least, bringing the case within the principles recognized by this court in the case of Dudley vs. The City of Frankfort.
    
    We conceive, from all the facts in the case, that the relief asked by appellants should have been granted, and that the trustees should have been perpetually enjoined, &c. The principles settled in the case of Dudley vs. The City and the au~ thorities there cited, we deem sufficient to show that it is the province of the chancellor to protect the citizens from trespass and waste, such as complained of in appellant’s bill.
    Many of the questions in this case are interesting; the counsel have not considered it necessary to enter into an elaborate argument of the case, and have merely endeavored, by the foregoing suggestions, to direct the court to those points which they consider must control it.
    
      Menzies Sf Spüman for appellees—
    We shall, in support of the correctness of the dedree, lay down and endeavor to establish the follow' ing propositions:
    1. That the dedication of the public grounds in the town of Henderson, as commons for public use, was as perfect, complete, and effectual, against all the original proprietors of the land, and those claiming under them, as if the town had been, upon their application, established by an act of the Legislature, and that, too, whether they signed the ordinance establishing the town or not. •
    2. That inasmuch as the town was established, not by an act of the Legislature, but by a private ordinance merely, the legal title to the public grounds never vested in the town, or its citizens or trustees, but remained in the original proprietors and their heirs, who held the same in trust for the use of the public as a common.
    3. That the deed from sundi'y citizens and lot-holders to Alves’ heirs and others, for the ground in contest, was wholly inoperative and void, and conveyed no title whatever.
    4. That the act of the Legislature, undertaking to ratify and legalize this arrangement, was entirely ineffectual for that purpose.
    5. That as the trustees of the town of Henderson were not the repositories of the legal title to the public grounds, and therefore not entrusted by law with its defense and preservation, no act or omission on their part, with reference to the claim of Alves, could operate as an estoppel against the claim of the public to this right of common.
    6. That so far from the city being estopped to deny the claim of Alves, the appellants are, in fact, estopped to assert any claim inconsistent with the public right of common.
    7. That even if Alves were not estopped to assert any claim as against the public, still his possession adversely to the city has not been of such character and duration as to have ripened into a title.
    We shall now offer a few suggestions and authorities in support of these propositions.
    1. First, then, as to the dedication. The pleadings in the Circuit Court lay stress upon the alleged fact, that only a portion of the original proprietors of the land signed the ordinance establishing the town, from which the conclusion, not very logical, is drawn, that the dedication is not binding upon them or their heirs. Our first answer to this is, that there is no evidence in the record that the ordinance was not signed by all who had an interest, at the time, in the lands upon which the town was located. The language of the ordinance imports the consent of the entire “Transylvania Company,” and there is no prooj in the record, unless it has escaped our notice, showing that any others had, at that date, any interest in the land. Secondly, this ordinance was signed by Walter Alves, the ancestor of James Alves, the original complainant in the court below, and whose rights alone the appellants in this court represent, which takes this objection out of the mouths of the appellants. Thirdly, even if the ordinance had not been signed at all, it would not have affected the validity of the dedication, as a dedication may be made by parol as well as in writing, and will be presumed whenever lots are laid off and sold upon, and calling for, public grounds. (City of Cincinnati vs. White’s lessee, 6 Peters, 431; Barclay, fyc. vs. Howell’s lessee, 
      0 Peters, 728; Trustees of Augusta vs. Perkins, 3 B. Monroe, 437; Rowan's ex'ors vs. Town of Portland, 8 B. Monroe, 232 and 237 ; Trustees of Dover vs. Fox, 9 B. Monroe, 201; Wiclcliffe vs. City of Lexington, 11 B. Monroe, 163.) Moreover, from the establishment of the town, in 1797, to about about 1825, a period of about twenty-eight years, these public grounds were used as such without objection or private claim.— But a dedication of a street will be presumed from four or five years use. (Jarvis vs. Dean, 3 Bingham, 447.) It is therefore entirely immaterial whether the ordinance was or was not signed by all or any of the proprietors, so far as the dedication is concerned.
    
      2. Our second proposition, viz: that the legal title to the public grounds never vested in the trustees of the town of Henderson, but remained in the original proprietors and their heirs, will not, we presume, be controverted. We shall at least assume itto be true. It is so admitted by Alves in the record.
    3. We come now to the question of the validity of the deed from sundry “citizens and lot-holders,” by which it is claimed that this ground was conveyed. We maintain that this deed was utterly void: First. Because the interest of said lot-holders and citizens in said public grounds, was only the right to their use as a common, and the deed being only a quit claim of “their right, title, and interest,” without warranty, could not, and did not, attempt to convey anything more than this public and common right; and as the vendees already possessed this right as fully as it could be vested in them, as a portion of the public, and the deed contained no warranty, it was wholly inoperative, and nothing passed by it. Secondly. Because the right which they undertook to convey was a public right, over which they, as individuals, had no control, and which they had no power tomlien or transfer, to the prejudice of the public. Thirdly. Because, even if the interest attempted to be transferred had been a vendible one, as the whole community was interested in it, all must have joined in its transfer; but the deed is executed by only thirty-one persons, when it is proven that the population of the town alone, (to say .nothing of the surrounding country whose interests were affected,) was ffve hundred, many of whom were lot-holders. See record, pages 87, 88. Fourthly. Because the right of common, having once vested by virtue of a dedication, is not confined to any given number or class of citizens, but extends to the entire public, whenever, as in this case, the common is of such a character as to be useful to the public generally, so that even if the right were in its nature vendible, no given number of citizens could alien it to the prejudice of others.
    But we are met, by the counsel for the appellants, with the position that long acquiescence in this deed, on the part of the citizens generally, would not only render it valid as against those who united in it, but would raise a presumption that a conveyance had been made by all the citizens. We must be excused for saying that the sophistry of this proposition is transparent. What is this acquiescence relied on, and how is it evidenced ? It will not be pretended that there has been any overt or affirmative action on the part of the citizens generally, sanctioning or assenting to this deed. How, then, have they manifested their acquiescence ? By doing nothing ? But inaction is not always evidence of acquiescence.— Acquiescence can be predicated of inaction only where a party fails to act when he is under obligations to do something, or is silent when he ought to speak.
    
    Now, what have the eitizens omitted which they ought to have done ? Here was a deed made by a portion of the citizens. It was utterly void and inoperative. In a legal sense it was a perfect nullity. Who, therefore, was called upon to pay any attention to it ? Shall a town meeting be called, and solemn resolutions passed, to disavow and avoid the effeet of that which, in law, is absolutely without effect? As well might the executive be required to order out the militia of the State to subdue an effigy, or expel an ignis fatuus from the swamp. Inaction, an entire disregard of this deed, by treating it as a nullity, is precisely what was and ought to have been done. And the proof is clear, that the citizens generally we re in the habit of treating .and using this ground as a public street or common. Deposition of J. W. Clay, p.. 107, of record.
    But, suppose it were admitted that the citizens generally had sanctioned and acquiesced in this deed.— We have already shown that this deed only purported to convey, and did convey, (if anything,) only the right of common in this ground. An acquiescence in the deed, therefore, would only be sanctioning the right and claim of the appellants to the use of this ground as a public common, which claim, we cheerfully concede. Such acquiescence, certainly, could not change or enlarge the legal import of the deed. In every aspect of the case, therefore, the deed amounts to nothing.
    4. We come now to consider the effect of the act of assembly, which undertakes to “ratify”' and “legalize” this arrangement. It is unnecessary to state that this act was probably procured without the sanction, or even the knowledge, of a tithe of the community interested in the subject of it. But even if otherwise, the act, as to this transaction, is perfectly nugatory and inoperative. First. Because said act could not vitalize a deed which was entirely devoid of legal force or obligation; nor, so retro-act upon a past contract, as, by virtue thereof, to create a nonexistent right, which the terms of the contract did not legally import; and, therefore, said act did not vest the grantees of said deed with any right not before possessed by them, nor divest the grantors, much less the citizens generally, of any right which they possessed. Secondly. Because, if such,had been the operation of the act, it would have been unconstitutional, being an interference with vested rights. In confirmation of the first position, we have only to add that, as already shown in the discussion of the preceding general proposition, this contract only purported to convey the right of common, and it is to be presumed that the Legislature only intended to carry out the contract according to its literal and obvious import, which was to transfer the right of common, and this is all that they attempted, or had a right to do. (Transylvania University vs. City of Lexington, 3 B. Monroe, 28.)
    But if they intended, or thé act purported to go further, and deprive a whole community of the right of common in this river front, the Legislature undertook to do what it had not the constitutional power to do.
    The case of the Transylvania University vs. The City of Lexington, above cited, which in some respects bears a strong analogy to this, is essentially different in one respect. The question there was as to the temporary occlusion of a part of Third street, which separated different portions of grounds, the whole of which belonged to the University, and were surrounded by open streets. In pursuance of a contract made between the trustees of the town and Transylvania University, the Legislature passed an act closing the street. It was a question of doubt, in that case, whether private rights had, in fact, been affected by the occlusion of this street, from the fact, that in the very nature of the case, it might concern only the University itself, as the University was the exclusive owner of all the lands on each side of the inclosed portion of Third street, and the whole was surrounded by open streets. The court, however, after intimating a doubt with respect to the interest of other parties in this street, declines to decide the question, because it is not judicially presented, but adds this significant remark: “And private rights being untouched we have no doubt that the Legislature has power to regulate and alter all the public highways in the Commonwealth, in towns and cities as well as in the country.” There is certainly here an unmistakable intimation, that in such legislative interference “private rights1,1 must be “untouched.” In the case at bar there can be no question as to the interest of every citizen in the public use of the property in contest. Streets are easily laid off and made, at any point, and may be exchanged, substituted, and multiplied to any desired extent. And, as in the Transylvania case, they may be so located as to be of but little if any utility to any, except those whose property lies immediately upon them. But a river shore is, in its very nature, limited in its extent, and peculiar in its uses. Here and there a majestic stream stretches across our fertile plains, its bosom the great highway of travel and commerce, and its shores the common receptacle for shipment and delivery of the products of the country. What God has given us, of these beautiful margins, that we may use and enjoy; but the combined power of all the legislative and judicial tribunals of the world cannot make a river share. There is no citizen, therefore, in town or country, who is not interested in the preservation of this shore as a common, and who did not, by virtue of its dedication, acquire a private right therein; of which he cannot constitutionally be divested, without his consent affirmatively given.
    We rely, therefore, upon the Transylvania case, above cited, in support of the position that this act, if it purported to divest this right, was so far unconstitutional and void.
    But we are again met with the doctrine of acquiescence in this legislative act, as the foundation of a presumption of general consent to the surrender by the community, of the right of common. We answer, as in case of the deed, that if the act was void, or its only'effect was to sanction a deed which conveyed nothing prejudicial to the public, no protest or dissent was necessary, and therefore silence was no evidence of acquiescence, and acquiescence in fact could work no detriment to the public.
    5. Our next proposition is, that as the trustees of the town of Henderson were not the repositories of the legal title to the public grounds, no act or omission on their part with regard to the claim of Alves, could estop or prejudice the claim of the public.
    We have already stated that the town was not established by the legislature, nor the legal title to the public grounds vested in trustees. If such had been the case, it might have been said, at least with plausibility, that the citizens, by electing trustees, voluntarily put the guardianship of this title, to some extent, in their hands. But they were not elected for this purpose, or with this power. As to this matter, they acted only as private individuals.
    Any proceedings of theirs, therefore, with regard to the assessment of this property in the name of Alves, would not bind or prejudice the public, since they, by virtue of their office, were neither the custodians nor the guardians of the title to these public grounds. In assuming this position, it is by no means admitting that these acts, on their part, are such as would, in any view of the case, operate as an estoppel. We hold the contrary. Even unexplained, they would be insufficient; but it is shown that at the same time that the trustees were acting upon these assessments, they were declaring that the ground in contest belonged to the town as a common. They seem not to have considered very maturely the character or bearing of their acts in regard to these assessments, or, which is more probable, they thought that was a matter which Alves was bound to take care of, and not they.
    The case of the City of Louisville vs. the Bank of the United States, 3 B. Monroe, 138, where the city was held to be estopped, by the acts of the trustees, to assert title to certain grounds which had once been a common, was very different from this case: first, in the fact that Louisville was established by an act of the Legislature, and the legal title to her public grounds was in the trustees, and the court treated them as its guardians; and secondly, in the character and solemnity of the acts by which they were adjudged to be estopped, being nothing less than the giving, receiving, and placing on record, several deeds of conveyance, recognizing facts, which, in that suit, were controverted by them.
    But, on the subject of estoppel, there is a question far behind this, and which will render the further consideration of this entirely unnecessary. It arises upon our sixth general proposition, which is:
    6. That so far from the city being estopped to deny the claim of Alves, the appellants, as the representatives of Alves, are estopped to assert any private claim, inconsistent with the right of common in this ground in contest. '
    That this ground was originally dedicated as a street, is not, and cannot be denied. And even if it had not been expressly dedicated, being a river shore, and the town located on the river, it would have been presumedly, or impliedly dedicated, as abundantly shown by the authorities cited above, under the head of dedication. It further appears, that the legal title to these grounds never passed out of the proprietors, but still rests in their heirs, and that Jas. Alves, the original complainant, was a son of Walter Alves, one of the original proprietors who signed the ordinance establishing the town.
    In what position then, does the law place him and the appellants as his representatives? The authorities are clear and unequivocal, that they are trustees, standing in precisely the same position towards the public as trustees of towns, in whom the legal title is vested, to public grounds. (WicMiffe vs. City of Lexington, 11 B. Monroe, 164.) And the3r are estopped to set up private claim to it, or revoke the dedication. (City of Cincinnati vs. White's lessee, 6 Peters, 439.) Verily, this doctrine of estoppel, on which the appellants are fain to rely, makes sad havoc, when turned against their own batteries.
    7. Our last proposition is, that even if Alves had not been estopped to set up claim, by his relation to the public as trustee, still, his possession of this ground in contest, has not been of such character and duration as to have ripened into a title.
    Under this head, we may with propriety lay down this, as a fundamental proposition, that, except so far as this ground was actually inclosed, or occupied by some kind of building or improvement, it was not in the adverse possession of Alves. For, his occasionally going upon it, did not in the least militate against the right and privilege of others, to use it in like manner. To contend that this sort of occasional use, may be construed as a possession adverse to that of the public, so as to mature it into an individual title, would involve the legal fallacy, after twenty years use of public ground, of vesting each individual, who had so used it habitually, with an exclusive individual title by lapse of time, provided that in the mean time he has laid claim to the .land. A proposition so absurd, carries its refutation upon its very face, and should be stamped with the seal of judicial condemnation. No one will contend for the proposition in this naked form; but it is the legitimate result of a claim of title by lapse of time, based upon this occasional use, which does not exclude the public from a participation in the use.
    The only actual occupacy of any partof this ground,, at a period sufficiently remote to be available, was by the woodyard of Alves and Marshall; and of this it may be said, first, that it was a legitimate use of this common, and therefore not hostile to the public-right; and, secondly, it was discontinued; and, therefore, even if hostile, it was not an uninterrupted adverse possession. So that, even if Alves had not been estopped, by. his position as trustee for the public, to take, or rely on an adverse possession against the city, his evidence of possession is entirely inadequate to sustain his claim, and we respectfully ask that the decree of the Circuit Court may be affirmed.
    
      Hughes and Dallam, -on the same side — -
    The argument of the associate counsel, has so ably and fully presented the questions of law arising upon this record, that little remains to be said.
    There is one question, however, raised by Alves’ answer to the cross-bill of the trustees, upon which we will offer a few suggestive remarks:
    Alves in his answer contends, that as lapse of time has barred him from asserting his rights at law, and the chancellor cannot therefore put him in “statu quo” it is and will be a fraud on him to “rip up” this transaction.
    To this we answer — first, that he has voluntarily sought the aid of the chancellor. Second, that a thorough examination and appreciation of the evidence will surely determine the mind of the chancellor, that the trustees and not himself are to be encouraged with the smiles and favor of the equitable tribunal herein.
    The ordinance of 1797 was signed, as he himself has admitted and proved, by James Hogg, his grandfather, by Walter Alves, his father, who was then -the husband of Amelia Alves, his mother, who was the “only heir” of Wm. Johnston. At the time of the “compromise” in 1'825,he had no claim, as he admits, but that which he derived from these sources.
    He and his father Walter Alves, both resided in the town of Henderson, or its vicinity, and a large tract of land, four hundred and fifty acres, adjoining .the town, was in their possession — how much more of the grant does not appear, but it is fair to presume they participated largely in the increased.value of all the lands lying contiguous to the town, embracing far and near their interest in two hundred thousand acres, and had received their portion of the money arising from the sale of the lots. While thus in enjoyment of the land, in business in the town which had been laid off by one of them at least— Walter Alves — with the express view and expectation “of greatly enhancing the value of all the land in the grant” — see ordinance, page’17 — “one Charles Buck, claiming to be the representative of Luttrell,” in 1817 or 1818, twenty years after the town had been laid off and established, many years after the lots had been sold, set up claim to the lands in the grant. (He Buck, if he was the representative of Luttrell, had some shadow of right, for the ordinance, from the proof, appears to have been signed by Um-stead, who was only the husband of the widow of Luttrell.) Litigation commences between Buck and those holding under the grant; it. continues until 1825. Alves waits patiently and anxiously to see if Buck “can succeed,” and never breathes a syllable in all this time of any right he has. The people become wearied with litigation with Buck; they are anxious to “quiet matters;” they concoct a scheme to buy him off; they become ripe to do so. “Just at this point”'Alves’ claim is heard of for the first time; it is mentioned to the man Morris, who has undertaken to settle Buck’s claim. It is urged upon the people as a claim similar to Buck’s. They do not discriminate ; have not the means or information to do so; are heartily tired of the harrassments of law— harrassments, if the appellant’s views prevailed, growing out of the unauthorized acts of Walter Alves’, the ancestor of appellants, and under whom they claim — and the consequence is, they, the citizens, are hurried into a payment of money to Buck, and a conveyance to Alves, (as that comes easy,) of the public grounds dedicated to the town. An act of the Legislature' is procured, by means easy to guess from what preceded; the people of the town, and their trustees, are persuaded they have made a capital arrangement; have “bought their peace” easy. Insidious and cautious steps are taken to perfect the title thus acquired, by “acts of ownership,” listing for taxation, &c. A lease is given to every squatter or keeper of a lumber or woodyard, that is permitted or suffered by the town to get there. Meanwhile the four hundred and fifty acres of land greatly increase in value by reason of the town, insomuch that a large portion of it can be sold by the foot as “town lots.” The territory becomes valuable, only because the town needs it for the enlargement of its public landings, as the town increases. Whereupon, immediately private rights are '■'■seriously''' urged, and this deed of “compromise,” and its attendant circumstances of “good faith,” legislative acts, and “acquiescence,” are dwelt upon with great unction, to show that the resistance of Alves’ claim to shut the town out from the river, is iniquitous and “a fraud.” The conclusion, from this short summary of proven facts, is obvious.
    We do not admit, however, that the ordinance was invalid in any respect. “Richard Henderson & Co.,” to whom the land was granted, was a firm of co-partners; the land was a joint stock concern; whether the interest therein of a deceased co-partner descended to his heirs, or went to his personal representative, is a vexed question truly, but not necessary to settle in this case. The lapse of time, the recording of the ordinance, plat, and survey, in the proper office, the deed of partition, and all the attendant circumstances, authorize the court and the law to presume any grant, conveyance, power, articles of co-partnership, or other legal paper necessary and proper to make valid and binding the ordinance, and that, too, before the deed of compromise.
    Our attention has just been called to the brief of appellants counsel, wherein a different construction has been given by them to the testimony of Marshall on the question of possession. The deposition of this witness is somewhat obscure, but he speaks of but one inclosure, and we are satisfied that a scrutiny of his deposition, compared with the other testimony on this subject,.will satisfy the court that our statement of his evidence is the true one.
    
    The counsel for appellants also remark that the statements in James Rouse’s two depositions “cannot be reconciled.” This witness was introduced by appellants to prove their possession, and a strict scrutiny and analysis of the two depositions are asked in justice to the witness, for it will, we think, show no discrepancy or contradiction whatever between them.
    In conclusion, we will only call the attention of the court to the case of Buckner vs. the town of Augusta, in 1 Marshall, page 9, as authority on the subject of the trustees’ recognition of Alves’ claim by taxing and otherwise.
    We do not perceive thatit is overruled by the case of the City of Louisville vs. the Bank of the United States, in 3 B. Monroe.
    
    And we will also ask the court’s attention to the significant fact, that the act of ratification by the Legislature, relied on by appellants — (session acts of 1827,) ratifies and legalizes the arrangement only, “so far as it effects the interests of the parties to the arrangement or compromise aforesaid.'’'1
    
    We pray an affirmance of the decree.
    
      July 11.
    
   Chief Justice Marshall

delivered the opinion of the Court.

James Alves, claiming to own and to have been for more than twenty years in possession of the land between the Ohio river and Water street, (reduced,) in the town of Henderson, except the cross streets running to the river, filed his bill in 1850, to enjoin Vanzant from continuing to excavate and remove the earth on a portion of that land near the river, .which he claimed to be doing under the authority of the trustees, who having been brought before the court by Vanzant, made their answer a cross bill against the complainant, asserted the right of the town in the entire slip between the river and the lots fronting on Water street, under an ordinance of Richard Henderson and company, establishing the town according to a plat, which showed that said slip was dedicated to the use of the town and the public, and calling upon the complainant to exhibit his title, they pray that the title of the town may be quieted, &c.

Alves, in his answer to the cross-bill, relies upon various deeds purporting to convey to him different interests derived from some of the original members of the company of Richard Henderson and company, to which company the Legislature of Virginia, by an act of' 1778, to be found in 3d Littell’s Laws of Kentucky, 585,. had granted, by the name of Richard Henderson and company and their heirs as tenants in common, and without further designation of the grantees, two hundred thousand acres of land on the Ohio, which included what was originally called “the Red Banks,” afterwards known as th.e town of Henderson, and situated on the Ohio river in the present county of Henderson. And he relies especially upon a deed of 1825, purporting to be made by the citizens and lot-holders of the town of Henderson, and to convey to himself and others, whose interest in the slip of land in contest were afterwards conveyed to him, besides certain portions of the public square, all their right, title, and interest in and to Water street, reduced to one hundred and twenty-five feet, which description seems to have been intended to embrace the entire river front between Water street reduced and the river. This deed was in fact executed by a minority of the holders or owners of lots at its date, and by a part only of the citizens. It purports to be made in consideration of certain rights relinquished by Amelia Alves, the heirs of Walter Alves, (of whom James Alves was one,) and Richard G. Hart, as made by a deed between these parties and the citizens of the town of the same date. Which deed, last referred to, conveys the right, title, and interest of the grantors in certain designated lots and in the streets, except the part between the river and Water street reduced, to the citizens of the town, and states its consideration to be the relinquishment by the citizens as evidenced by the deed from them. And the complainant alleges that these deeds were made in compromise of a claim set up by him and others under Richard Henderson & Co.; that the arrangement was made with the consent and approbation of all the citizens, and was moreover ratified by an act of the Legislature in 1827; that all ought to be bound by it, and that should it be disregarded in behalf of the town, great injustice will be done to the adverse claimants, and especially to himself, as their claim is now barred by the statute of limitations, and they cannot be placed in statu quo. He shows subsequent conveyances to himself from Amelia Alves and the heirs of Walter Alves and others. He relies also upon his alleged possession ever since 1825, upon leases, transfers, and other acts of dominion on his part, on his continued payment of taxes for it to the town, and on the recognition of his title by the trustees, in fixing the amount of taxes to be charged therefor. James Alves having died, the original and cross-bills were revived by and against his executors and heirs.

Upon the hearing, a decree was rendered dissolving the injunction which Alves had obtained, and forever quieting the trustees of the town of Henderson, so far as the executors and heirs of Alves are concerned, in the possession, use, and enjoyment of the territory between Front or Water street of said town and the Ohio river, to be held by them as a public common, highway, and landing for the use and benefit of the citizens of said town. And the case is brought to this court by the representatives of Alves.

It appears that as early as June, 1797, Gen. Samuel Hopkins, as the agent, and Thomas Allen, as the surveyor, of Richard Henderson & Co., laid off the town of Henderson, and made a plat of it, exhibiting and defining the lots, streets, and alleys, a large open space as a public square, and the space between the river and the lots fronting towards it entirely open without mark or division; which plat, with the ordinance now to be noticed, was recorded in the Henderson county court. In August of the year 1797, James Hogg and John Williams, two of the original members, and others, claiming to represent other members, met at Williamsborough, North Carolina, and passed an ordinance entitled, “ordinance of the Transylvania company, commonly called Richard Henderson and company, directing the disposal of the town of Henderson and the out lots.” The first sentence is as follows : “Be it resolved and ordained, that the town of Henderson and all the land, lots, streets, apportionments, and appointments thereof, lying on the Ohio river, in the county of Christian, (as it then was,) and state of Kentucky, as laid off and surveyed by our agent, Samuel Hopkins, and our surveyor, Thomas Allen, agreeable to the plat or form by them made, and to us returned with their certificate, be and the same is hereby established.”

The ordinance then goes on to describe more particularly the manner in which the town had been laid off, to give and grant all the lands located in said plats for the purposes of the town, and to prescribe the manner and terms of disposing of lots by the agent, directing donations in some circumstances, also prescribing forfeitures for failure to improve, &c., and reciting the probable advantage to the lands generally from the speedy settlement of the town. It also makes formal provisions with respect to the responsibility of their agent, that he shall submit his books annually to the inspection of commissioners, who have power to remove him for cause; that he shall sell and convey the lots, collect the proceeds, and pay them over in proper proportions to the several persons entitled, or their private agents, &c., &c. And it continues the agency of Samuel Hopkins, with the powers above stated. The conclusion of the instrument is, “in testimony whereof, we the aforesaid company have hereunto set our hands and seals this 9th day of August, 1797.” Then follow the names and seals of nine persons, the original number of the company, of which names four are identical with the names of original grantees, owning originally four-eighths of the entire grant; and one other is the name of Walter Alves, the father of the complainant James, through whom he derives a considerable part of his interest, from John Williams, James Hogg, and Thomas Hart, whose names, (that of Thomas Hart by attorney,) are all signed to the ordinance. The fourth name identical with that of an original grantee entitled to one-eighth of the grant, is that of Nathaniel Hart. The identity of name in connection with lapse of time, and the notorious acts done under the ordinance, would authorize the assumption that Nathaniel Hart, the party to the ordinance, was the original grantee of the same name. There is no fact or suggestion in the case to the contrary, unless it be the statement of James Alves in his answer, that only three of the original company were alive at the date of the ordinance. And unless the fact known to one member of the court to have been proved in another case, having no connection with this and not referred in it, that Nathaniel Hart died in 1782, is to operate in this case, it must be presumed that Nathaniel Hart, one of the original grantees, was also a party to the ordinance. But be this as it may, the lapse of time and the nature of the acts done under the ordinance, not only justified the assumption, after the lapse of twenty years, and before 1825, that the ordinance and the signatures thereunto were the genuine acts of those who appear parties to it, but then also authorized the presumption that those who adopted and signed it in the name of the company were either themselves the company, or were authorized to act for it. And it would devolve upon those who deny its efficacy as to themselves, to make out in proof the ground of impeachment. It is to be observed that the act of 1778 making the grant, does not name the individual grantees, but grants the two hundred thousand acres of land to Richard Henderson & Co., and their heirs as tenants in common, thus apparently making or treating them as a quasi corporation, so long at least as the original grantees survived and the land remained in common. What regulations the original grantees constituting Richard Henderson & Co., may have made for determining and evidencing the will of the company with respect to its common interests, and for exercising dominion over the common property, this record does not show. But it is to be presumed that an act so important and so formal as this ordinance, adopted in the name of the company, and signed and sealed in such a manner as to bind the interests of the actual parties to it, and of such others as they had a right to bind, and to which several of the original grantees were parties, was in fact, as it purports to be, the act of the company, and as such binding upon all its members.

As to all persons interested in the grant at the date of the ordinance, and who were then sui juris, and who had acquiesced in it, this presumption must have prevailed prima facie in 1825, and has now become almost irresistible. And even if a feme covert or infant were then entitled as heirs of'an original grantee, we are not satisfied that such an interest left by the ancestor, involved with the larger interests of a company of which he was member, and to whose acts his own interests were subj eet, should not also be bound by the acts of the company done in proper form for the common advantage, and of which the infant or feme covert may have, in common with others, the full benefit.

Independently of the mere value of the land on which a town is established, its settlement and growth necessarily enhance the value of the adjacent lands, and those who receive the benefit of this exhancement, to the full value of their interests in the land covered by the town, established' by their co-tenants on a minute portion of the eommon land, have little right in conscience, (though they may not have been divested of their title,) if they repudiate the authority by which the town was established, to claim at the same time the land within it, or its value enhanced by the act which they repudiate. If they concede the legality and efficacy of the establishment of the town, they must also concede the lights vested in it and its inhabitants, and they will be entitled of course to their just proportion of the proceeds of sales in the town. Even in the case of mere private interests held by tenants in common of undivided land, if one co-tenant appi'opriates to himself a specific portion by occupation and improvement, or by sale and conveyance, such an appropriation will be so far protected in equity, that if there be enough of the other common lands to satisfy the just claim of the other co-tenants according to the original condition and value of the whole uneffected by the labor of the co-tenant who has made the appropriation, they will be thus satisfied, and the appropriation made by one, though at first without an exclusive right, will not be disturbed, unless it be necessaiy for effecting a just and equal partition. And neither femes covert nor infants are exempt from the application of this principle of equity.

I. Where one of several tenants in common aliens part of the land the purchaser will not be disturbed in his possession, if the other claimants can be satisfied as to their interest out of the remainder.

1. If, therefos’e, Mrs. A. Alves, represented to have been the daughter and sole lieii’ess of William Johnston, an original grantee, owning one-eighth part of the grant to Richard Henderson & Co., was, at the date of the ordinance, the wife of Walter Alves, who was a party to the ordinance, and signed and sealed it, either in virtue of her interest, or of that and others acquired by him; and if, not being bound by it, she repudiated it after her husband’s death, still, as the ordinance is in fact an appropriation of the land included in the town of Henderson, by those who made it, first to themselves, or the uses appointed by them, and then to the purchasers of lots and the inhabitants of the town, and the public, there is still greater reason than in an ordinary case, to say that she had no right to disturb the appropriation of the-land included in the town established by her co-tenants, and held and improved by numerous individuals under them, unless it were necessary for the satisfaction of her just and equal interest in the common land, irrespective of the peculiar value of the land in the town, consequent upon its appropriation as a town. And it is only upon this condition that the Chancellor would, in 1825, have aided her in the assertion of a right inconsistent with the validity of the ordinance, or with the rights acquired under it.

But it is not proved in this case, as we understand the record, that Amelia Alves was, at the date of the ordinance, either an infant or a married woman; nor does it appear that her full interest in the grant might not, in 1825, have been satisfied in other portions of the grant, nor that it had not been so satisfied, nor that she had not received her just proportion of the proceeds of the sale of lots, or compensation for her portion received by her husband, Walter Alves, who had extensive interests in the grant; nor in fact is it shown that she ever repudiated, or attempted to repudiate, the ordinance, or to deny the authority under which the town, with its public grounds, was established and sold and conveyed and built up, or that she asserted any interest in opposition to it, except as it may be inferred from her execution of the deed conveying to the citizens all her right, title, and interest in certain lots, perhaps all of which had been sold in consideration of' a deed executed by the citizens, her acceptance of which implies an acknowlment on her part of their right in the land therein mentioned, and of the validity of the ordinance, and of the establishment of the town, under which alone they pretended to have any interest.

In a bill filed by Walter Alves in 1817, claiming from Samuel Hopkins an account and payment of money, the proceeds of the sale of lots in Henderson, the interest of Mrs. Alves, in whose right the claim is in part made, is stated as being one-sixteenth —that is, one-half of the eighth held originally by her father, William Johnston. Walter Alves also claimed, in his own right, portions of the interests of John Williams, James Hogg, and Thomas Hart, all of whom, as well as himself, were parties to the ordinance, and thereby conclusively bound their interests into whosoever hands they might afterwards come. Two thousand dollars were paid by Hopkins to the order of Walter Alves, during the progress of this suit, which was afterwards discontinued. It is the interests of these parties, derived principally through Walter Alves, and all by acts subsequent to the date of the ordinance, that James Alves and others conveyed, or attempted to convey, to the citizens, who, or the town, already had a better title to them than he had to the interests of Williams, Hogg, Thomas Hart, and Walter Alves. Richard G. Hart, who was also a grantor in the deed of 1825 to the citizens, and a grantee in their deed, was a co-complainant with Walter Alves in the bill of 1817, and claimed for himself and co-heirs, whom he professed to represent, the interest of their father, Nathaniel Hart, an original grantee, entitled to one-eighth. The bill contains a full recognition of the validity of the ordinance, and the agency of Hopkins, and corrobarates, as to Richard G. Hart, the presumptions before mentioned. He afterwards conveyed his interest in the river front to James Alves, as did also Wm. Hart, claiming to be an heir of David Hart, an original grantee of the Henderson grant, entitled to one-sixteenth. He too was a party to the bill of 1817. In 1840 James Alves also procured a conveyance of the interest of Burton, residuary legatee of John Williams in the entire grant. These deeds recite small considerations, and in fact passed nothing in the town, except such interest, if any, as Richard G. Hart acquired in the space between the river and Water street reduced, under the deed of the citizens.

Did any right, title, or interest pass by the deed of 1825, purporting to be from the citizens and lot-holders of the town of Henderson? What right had they in the public square, and in the space between Water street reduced and the river? With regard to the public square we need not pursue the inquiry farther than to say, that whether anything passed by the deed or not, the portions of it claimed under the deed having probably been suitable for private appropriations, may be presumed, after a lapse of twenty-five or thirty years, to have been taken possession of, and so appropriated to the exclusive use of individuals claiming under the deed as to have acquired a title against the town, by length of possession. There being no proof to the contrary, it may be presumed that the grantees in the deed from the citizens have in this way realized, under color of that deed, property of considerable value.

2. A portion of the grantees of the company to whom the grant waa made, called Henderson’s grant, (see 3 Littell’s Laws of Kentucky, p. 585,) by an ordinance, set apart a portion of the grant for the town of Henderson, by a plan set forth in a plat, in which public grounds, streets, alleys, were laid down: held, that the public grounds, streets, alleys, and the space between the lots and the 0-hio, were dedicated to public use.

With regard to the land between the river and Water street, the dedication of which to the use of the town and the public, so far as those who established the town, or ratified that act, could do it, is so manifest that we have not stopped, and shall not now stop, to demonstrate it. The right of the citizens and lot-owners was a mere right to use and keep it open as a common or highway, or as it is described in the deeds of 1825, a street, for access to the river, and for all the public purposes to which such a space between the lots and a navigable river, running along the front of the town, could be appropriately used by the citizens of the town, and the general public, so far as any person or persons might have occasion so to use it. And as the property of the town, it was under the general control and superintendence of the trustees, for its preservation and improvement, and for wharfage, and other appropriate profits, for the benefit of the town.

It was decided in Buckner vs. Trustees of Augusta, 1 A. K. Marshall, 9, that trustees of a town had no right to alien or convey such property, from the uses to which it was dedicated. And the same doctrine has been held ever since, and has been repeatedly recognized by this court. Of course the action of the trustees upon the valuation of this property for taxes charged to Alves, did not conclude the town as to the title ; and especially when Alves claimed that the estimates should be low, because his title was disputed. We think it very clear that a conveyance from a portion, and, as we are inclined to think, even from all of the citizens, must be equally inoperative. It is as public property that the citizens of the town, and all others, have the right to use such property. The right of individuals in it is a mere right to use it, in subordination to the public right. This right of use belongs equally not only to lot-holders but to all inhabitants, and to all individuals of the State, according to their various necessities or convenience; and it is a right which belongs to future as well as to present lot-holders and inhabitants. If one citizen or lot-holder should attempt to convey his individual right to another, it is difficult to conceive that his own right to the use would be diminished; and even if, by estoppel or otherwise, it should be extinguished, we do not perceive that this could operate to enlarge the right of the grantee, who had already as much right in the proper uses of the street or common as he can have or enjoy, and as every other citizen also had. And if it were admitted that all the inhabitants could, by their joint deed, destroy or extinguish the public right, which we do not admit, it seems to be evident that a conveyance, by any number less than the whole, could not affect the rights of those who did not convey, and could not change the nature or the character of the property, which would still remain dedicated to the common and public use of all others, if not of those who made the deed; whence it follows that a conveyance, or attempted conveyance, of this right, by any portion, would not enlarge the rights or interest of the grantee; and when it is considered that the right of use pertains to the larger public, outside of the town, and to all persons in it, without regard to age or sex, or disabil-' ity, there seems to be no way of extinguishing this common right, by the act of individual citizens, while the town itself remains. We are satisfied, therefore, that the deed of 1825, executed by a minority of the lot-holders, and by a part only of the citizens, passed nothing to the grantees, and invested them with no rights in addition to those which they before had. And as the act of the Legislature of January, 1827 — Session Acts, 50 — ratifies the arrangement, of which this deed was a part, so far only as it affected the interest of the parties to it, the deed, however efficacious it may have been made as between the parties, is even, under the operation of the statute, wholly ineffectual as to other parties; and as all who were not parties have precisely the same rights which they would have had if the deed had not been made, for no one derives from the makers of the deed the right to use the streets and public grounds of the town, it follows, that even under the operation of the act, if it be operative at all, the grantees acquired no right to use the public grounds to the exclusion of other individuals, or of the public. Even if the act be effectual to reduce the width of Water street to 125 feet, it does not, in so doing, profess to revoke the dedication, nor was it competent for the Legislature to do so, since that would have been taking away the property of the town and its citizens.

3. It is not competent for the citizens of a town, by deed, to transfer to an individual the title to, or. exclusive use of, the streets, alleys, and public grounds dedicated to the use of the public.

It is however contended, that although the deed was not executed by all it was, in fact, approved by all the citizens; that all derived the benefit of the arrangement and compromise, of which it was a part; and that from lapse of time, and general acquiescence of the citizens in the claim and possession of James Alves, under the compromise and deed of the citizens, it should be presumed that they admitted and assented to his title, and to the legislative act by which it was confirmed. But if it be doubtful as to the effect of a deed executed by all of the male adults of the town, it seems entirely certain that mere acquiescence in the deed which could affect only the rights of the parties to-it, and purported nothing more, could not give to it a more extensive operation. The same remark applies to the act of the Legislature, which, besides reducing Water street, which might only distinguish it from the residue of the common property, ratified the arrangement or compromise so far only as it affected the rights of the parties to it. There is, however, no evidence that this act was passed on the general application of the town, or that at its date,- or any time since, either its existence or its terms were known to all or a majority of the inhabitants ; nor is there any evidence of universal acquiescence in the claim or possession of Alves, or of such possession on his part as excluded the public from the actual use of all portions of the land now in contest, and as might, by a continuance for twenty years, defeat the public right and perfect his own.

4. A citize"'of a town, b? enclosing an® holding ad versely for twenty years, may acquire exclusive right to a portion of the public grounds dedicated to public use, but the possession and use must be adverse and the use exclusive.

It is true that since about the year 1828, James Alves having acquired from the claimants under the deed of the citizens, or most of them, their interest in the slip between Water street reduced and the river, has either occupied or leased or sold, under claim to the whole, certain defined portions of it. Before the commencement of this claim however, and during the entire period since, the town, its inhabitants, its municipal authorities, and the public generally, according to their necessities and occasions, have made the appropriate use, and exercised the appropriate acts of ownership over all accessible public portions of the same slip or river front which were not, at the time, in the adverse possession of Alves, or those claiming under him, by exclusive occupancy, or by actual inclosure, by which the public or common use was actually excluded. With the exceptions thus indicated the inhabitants and others have, at all times, used this space at pleasure, not only for common access to the river, but by digging and hauling away sand from the banks, by loading and unloading boats at any part of the shore, by using it for building and launching boats, and by collecting, under the authority of the town, wharfage from boats landing and lying at any place on the shore from the upper to the lower end of the town. And with the exceptions before made there has been no difference in the manner and extent of these uses, before and since the arrangement of 1825, unless it be that the charge of wharfage had not previously been made. This being the appi’opriate uses by which the public right to the space in question, as being dedicated to the use of the town and the public, for a street or common, would be properly asserted and maintained, we think it is entirely clear that the public right could not be ousted by a mere claim of title or possession, or by anything less than an actual private occupancy or exclusive use, evidenced by inclosure, and that it could not be defeated except by a continued adverse occupancy, or exclusive jjossession thus evidenced during twenty years before the assertion of the public right by suit or action. To this extent only is it understood that in the case of Rowan’s ex’ors. vs. Portland, 8 B. Monroe, 259, the public right was held to be barred by an adverse possession of twenty years. Applying this test in the present case we are satisfied, from a careful examination of the testimony, that although there may be certain portions of land between the river and Water street reduced, of which there has been such a possession as bars the public, and although some of them may have been held under claim derived from Jas. Alves, there was not, at the commencement of this suit, in October, 1850, or at the time of filing the answer of James Alves to the cross-bill of the trustees, in L852, any part of the disputed land then in the possession of himself or his tenants, by inclosure or actual occupation, which had been so in possession, continually, for twenty years preceding either of these dates. The owners or claimants of any portions of the land of which there may have been an exclusive possesslon at the commencement of this litigation, not be-mg before the court, or parties to this suit, except James Alves, and his representatives since his death, the interests of no others are affected by the decree, which, under the views expressed in this opinion, is deemed correct;

On the whole case it appears, that of the interests set up by Alves and other claimants in 1825, all were either bound by the ordinance, and the acts done under it, or barred by time, unless the doubtful interest of Mrs. Amelia Alves be an exception.— Doubtless the assertion of a large claim by Alves and others, against the town, just when the citizens, to get clear of the harassment and unfavorable influences of a litigation, in which they had been involved by another claimant, had agreed to quiet his claim by a compensation in money, produced an alarm for their interests and those of the town, under which many of them, for the sake of peace, and to avoid a litigation which, in any event, would retard the growth of the town, were willing, without much investigation, to purchase quiet and repose by the alienation of portions of the public property. If they had not the power to do this, and if, as we have decided, their deed was ineffectual for the purpose, it has not been made manifest in this case that they obtained much advantage by the conveyance of Alves and others to the citizens. At any rate, before it could be assumed that the nullity or the nullification of the deed from one party to the compromise, operated as a great hardship upon the other, because he cannot now be placed in statu quo, it should be shown that something substantial passed from that party in the compromise, and that no fair compensation has been received for it under color, and by the conceded operation of the void deed. But nothing of this appears. It is not shown that even Amelia Alves had any claim available against the town, or that she intended to assert any byr litigation, or that there would, in fact, have been any litigation upon the claims involved in the compromise. Nor is it shown that nothing considerable has been realized under the deed from the citizens, or that what has been claimed under it can be restored.

Wherefore, the decree is affirmed.  