COURT OF APPEALS OF KENTUCKY
UU   — ni —------ --
JANUARY TERIM. 1855.
CONWAY, AND OT[IERSP )
against        Appeal from Camibell (Crcuit Court.
TAYLOR & AIR.  )
BRIEF FOR APPELLEES,
BY J. W. STEVENSON.
C. P, Bradley &  Co., Printers, 117 Main St., Cincinnati.








COURT OF APPEALS OF KENTUCKY.
JAN UARY TERM, 1855.
CONWAY & OTIIERS, 
against HR                Appeal from
TAYLOR    & AIR.
TAYLOR &s AIR.            Campbell Circuit Court.
This is a contest as to an exclusive ferry privilege claimed
by the appellees, from the entire strip of ground, between Front
Street, in the city of Newport, and the Ohio river-across said
river to Cincinnati, and arising on a bill in Chancery, filed by
them against the appellants,-seeking to enjoin them from
running a rival ferry-boat from Newport to Cincinnati, from
their landing in front of said city of Newport.
Although the record is voluminous, the facts on which the
proper decision of the controversy depends, can easily be reduced to a narrow compass. The following summary comprises
the most material of them:
On the 20th of April, 1787, there was granted and patented
by the Commonwealth of Virginia, to James Taylor, of that
state, fifteen hundred acres of land, including the land on the
Licking and Ohio rivers, at their confluence.
In February, 1792, James Taylor, the patentee, through
Hubbard Taylor, his agent and attorney, laid out the town of
Newport, at the confluence of Licking with the Ohio, in accordance with plat No. 1, attached to brief and copied in the record.
As the manner of laying out the town in 1792, by Hubbard Taylor, is greatly relied on by the appellants, as showing




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title in them, it is important to copy Iubbard Taylor's testimony, which is as follows:  " ie stated that he was the son
of James Taylor, the patentee, and that he, as agent and attorney in fact for said James Taylor, in the year 1792, surveyed
and laid off the town of Newport, according to a plan of said
town, which was offered in evidence (and attached to this brief,
marked 1,) and that the conditions attached to said plat were
at that time annexed by him to said plat, and that the same
were generally shown and made known to the purchasers of
lots in said town, and that in surveying and laying off said
town, he did not survey or lay qf any part of the ground between front street and the Ohio river, either into streets or lots,
nor did he lay of any of the streets, running towards the river,
beyond Front street, and that he avoided and refused to do so,
in order that said ground between _Front Street and the river
might be reserved to said Taylor, and also, to enable him to hold
the exclusive right to the ferry across the Ohio river, opposite to
said town, and that no street in said tobwn ever wvas laid of by
him, so as to extend to the Ohio river.  The witness was not
present in 1795, when said town was re-surveyed, and he ceased
to be agent for James Taylor in the fall of 1793, after which
time James Taylor, (the younger and ancestor of one of appellees,) acted as agent of James Taylor, the patentee, who
died in 1804."
The plan of the town, as laid out by Hubbard Taylor, did
not include, therefore, the. strip of ground between Front
street and the Ohio river.  The streets were not extended
to the river. There was an unbroken line on the northern side
of Front street, as the northern boundary of the town, and
the reasons for not including this strip of ground in the plan
of the town, and making it a part thereof, are clearly and
succinctly set out by Iubbard Taylor in his deposition above.
After the town had thus been laid out by Iubbard Taylor,
a few lots were sold, and among them  one to John Bartle,
which bounded on Front street.




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The town, as laid out by Iubbard Taylor, and platted in
1792, extended only to what is now Monmouth street, which
was the eastern boundary of said town. At the period of laying out this town, in 1792, it was comprehended in the limits
of Mason County.
In July, 1793, John Bartle, one of the purchasers, of a lot
at the sale of lots in 1792, applied to the Mason County
Court for the grant of a ferry across the Ohio river, from his
lot in Newport to Cincinnati, which was granted him,
On the 29th of January, 1794, a ferry was granted to James
Taylor, of Virginia, by the Mason County Court, from his landing in front of Newport, across the Ohio river.
In 1795, James Taylor sued out a writ of error from the
Court of Appeals, seeking a reversal of the order of the Mason County Court, granting to John Bartle a ferry across the
Ohio river at Newport, which was decided by the Court of Appeals on the 15th of May, 1798, reversing the order granting
said Bartle a ferry, upon the ground that it did not appear
that the land of said Bartle bounded ou the Ohio river.
James Taylor, of Virginia, established and commenced running his ferry across the Ohio river, at Newport, in 1794.
On the 20th of August, 1795, a re-survey and plat of the
town of Newport was made by Roberts —being plat No. 2, in
the record, and attached to this brief, by which the limits of
the eastern boundary of said town were extended to Eastern
Row, and the strip of ground between Front street and said
Ohio river, were endorsed "common, or'the esplanade' to remain
a common forever!" This re-survey and plat constitutes the
plat of the town of Newport, and was recorded.
On the 14th of December, 1795, an act was passed by the
Legislature of Kentucky, incorporating the town of Newport
in conformity with the re-survey and plat of said town, as made
by Roberts.
The preamble of that act sets out: "whereas it is represented




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to the present General Assembly that one hundred and eighty
acres of land, the property of James Taylor, in the County of
Campbell, have been laid off into convenient lots and streets,
by the said James Taylor, for the purpose of a town, and distinguished by the name of Newport, and it'is judged expedient to vest the said land in trustees and establish the town.
" ~. Be it therefore enacted by the General Assembly, that
the land comprehendinq the said town, agreeably to a plat made
by John Roberts, be vested in Thomas Kennedy, and others,'who are hereby appointed trustees for the same, except such
parts as are hereafter excepted!'
4~ 7. Be it further enacted, that such part of said town as
lies between the lots and rivers Ohio and Licking, as will appear by a reference to the said plat, shall forever remain for
the use and benefit of said town, for a common: reserving to
the said James Taylor and his heirs, and assigns, every advantage and privilege which he has not disposed of, or which he
would by law be entitled to."
The streets and lots as exhibited by the Roberts plat of
1795, like that of 1792, did not extend to either the Ohio
or Licking rivers.
The disputed ground between the northern boundary of Front
street and the Ohio river, varies according to the inflexions in
the line bounding the margin of the river at high water mark,
from five to ten poles, and the distance from high to low water
mark varies from seventeen to two hundred yards, and was not
included in the 180 acres laid out for a town. This area is
denominated "the esplanade! "
In 1799, James Taylor, of Caroline County, Virginia, the
patentee, conveyed to his son, James Taylor of Kentucky,
this strip of ground, between Front street and the Ohio river,
as the other ground adjacent to the 180 acres laid out in the
plat of the town in 1795, together with his ferry franchise.
James Taylor, of Kentucky, continued to run this ferry from




[5]
the time of the conveyance by his father to him in 1799, from
the ground in front of Newport, on which said ferry was established.
In consequence of the passage of the act of 1806, by the
Legislature of Kentucky, concerning ferries, James Taylor of
Kentucky, applied to the Cambpell County Court in 1807, for
the establishment of the ferry granted to his father; and
said ferry was re-established in his name, and he executed a
bond, and continued to run said ferry from almost every part
of the ground or esplanade, in front of the town of Newport,
from that period to the present time.
In 1830, the town of Newport applied to the Campbell
Courr Court, for the grant of a ferry to said town, from the
esplanide across the Ohio river to Cincinnati, which application
was refused.  An appeal was taken to the Court of Appeals,
and at the June term, 1831, the aforesaid order of the Campbell County Court, refusing the grant of a ferry to the town of
Newport, was affirmed.
This case is reported in 6 J. J. Marshall, 134-a reference
to it will show that this Court judicially settled:
1st. That James Taylor, senior, was not divested by the act of
1795, of the fee in the ground between the northern boundary of
Front street and the Ohio river, designated as the esplanade; and
that a right of common to the citizens was not inconsistent
with the retention of the legal title by the proprietor to this
slip of ground.
2d. That even if the proprietor had been divested of the
legal title, by the act of 1795, incorporating said town, the
ferry privilege did not go with it, but was reserved to the proprietor by the 7th section of that act. That said reservation,
in said 7th section, by the proprietor, of all precedent rights
not inconsistent with the use of this esplanade as a common,
was a contract between said proprietor and the Legislature of
Kentucky, which was legally and properly made, and forever




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secures to said proprietor the exclusive right of ferry privilege in front of said town, and that said exclusive right is not
inconsistent or antagonistic to a right of common in the people of the town of Newport!  This Court decides that it was
legal to make such a reservation, and that it was effectually
made by the act incorporating the town of Newport in 1795.
James Taylor, of Virginia, and his grantee and son, James Taylor, of Kentucky, continued, therefore,uninteruptedly to run this
ferry from 1794 until the present time.  The proof shows also
that he exercised ownership over this whole common in front of
Newport, and never permitted even the quarrying of stone without his consent. That he was in the habit of landing his ferry
boats at various points on this common, or esplanade, frti time
to time, and that while he has acquiesced in its free use as a
common for egress or ingress to the people of the town, he has
always claimed and exercised the exclusive ferry privilege, and
no other ferry has ever been attempted, except his own, for the
last half century.  It is true the record shows an old market
house was erected on a part of this common, some thirty
years since; but the whole proof shows, it was erected evidently by his consent, and in entire subordination to his exclusive ferry privilege.
After an incorporation of the town of Newport into that of
a city, the city of Newport applied, in 1850, at the February
term  of the Campbell County Court, for the grant of a ferry
to the President and Common Council of the city of Newport.
No notice was given of said application, and the ferry was
granted.
At the time of this application, General James Taylor had
departed this life, leaving his last will and testament, and appointing his son, James Taylor, his executor, and making a
particular devise of this ferry, and requiring his executor to
rent it until the taking effect of the device, as provided for in
said will.




L1]
As soon as the action of the Campbell County Court granting a ferry to the city of Newport was known, a writ of error
was sued out from the Campbell Circuit Court, by the executor, and devisees of General Taylor, seeking a reversal of the
order of the Campbell County Court granting a ferry to the
President and Common Council of the city of Newport across
the Ohio river, in front of said town. By consent of parties,
a change of venue was taken from the Campbell to the Kenton
Circuit Court, and the order of the Campbell County Court,
granting said ferry to the city of Newport was reversed, from
which an appeal was taken by said city of Newport, to this
court, when the cause was heard, and the judgment of the
Kenton Circuit Court was affirmed in March, 1850.  This
case is also reported in 11 Ben. Monroe, 361.
A reference to the last report will show, that this court
considered itself as precluded by the first adjudication, in 6 J.
J. Marshall, giving a judicial construction to the act incorporating the town of Newport, and that the city of Newport was
bound by that decision. That the city being the successor, and
representative of the town of Newport, was precluded, and the
rights and interests being the same in 1850, as they were in
1830, at the period of the first adjudication by this court, that
the exclusive ferry right was in James Taylor. It affirms the decision of this Court, in the Trustees of the town of Newport
against James Taylor, reported in 6 J. J. Marshall, and
already referred to, to be a complete bar to the alleged claim of
the city of Newport, to any ferry franchise, from any part of
the esplanade, or common, in front of said city, across the
Ohio river.
Both the plats of 1792 and 1795, were before the circuit
court and court of Appeals, in each of the cases reported in
6 J. J. Marshall, and 11 Ben. Monroe.
In 1853, some of the appellants built a steam ferry boat,
styled the "Commodore," with the view of running her as a ferry




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boat, from Newport to Cincinnati. They rented that portion
of the esplanade, or common, in front of Monmouth street,
in Newport, from the President and Common Council of that
city, and a private wharf on the opposite side. They caused
the aforesaid ferry boat to be duly enrolled, and licensed, as
employed in carrying on the coasting trade, under the act of
Congress, in such cases made and provided, from Newport to
Cincinnati.
Robert Air was the lessee of the ferry, from James Taylor,
executor of General James Taylor, deceased, and he and those
under whom he claims, had been in the adverse and uninterrupted use of this ferry and landings, extending along the
whole front of the city of Newport, for fifty-seven years.
The appellants commenced running the " Commodore" as a
ferry boat in December, 1853.
James Taylor, executor of General James Taylor, deceased,
and Robert Air, as lessee and occupant of the ferry, exhibited
their bill in the Campbell Circuit Court, setting forth the foregoing facts, and asking for an injunction restraining the owners
of the "Commodore" from running said ferry boat, as destructive
of their exclusive ferry franchise. They made the President and
Common Council of the city of Newport parties, prayed, that
the lease to the owners of the "Commodore" might be cancelled, and that the right of Taylor to the wharf might be
quieted, alleging, that the city of Newport were claiming it.
The motion for an injunction was heard in Frankfort, in
Jan. 1854. The defendants appeared, and resisted the motion, and read various affidavits.
The injunction was granted.
The defendants filed separate answers, in February, 1854.
The city of Newport denies, that the exclusive ferry franchise is in Taylor; but insists there was a dedication of
the whole common by the plat of 1792, to the town of Newport, and by which dedication, Gen. Taylor was divested of the




[9]
legal title to the esplanade. That the title to said esplanade is
now in themselves, as successors to the town of Newport; and
that said town of Newport always extended to the Ohio river.
They insist that the town of Newport was laid out in 1791,
instead of 1792; that it was re-surveyed and platted by Roberts
in 1795, and that the act of the Legislature incorporating
Newport was passed in December, 1795, and the limits of the
town increased from Monmouth street to East Row by the plat
of 1795.
They admit that no part of the strip of ground in front of
the lots of the town of Newport, as designated on the plats of
1791-2, or of August, 1795, and between said lots and the
Ohio river, was ever at any time laid out into streets and
alleys; and the reason assigned for this admission, that this
whole strip was of itself one broad street!
They admit that in 1794 the Mason County Court granted
to James Taylor, a ferry across the Ohio river, from his lands
in front of Newport; but they deny the jurisdiction of that
Court, to make such grant.
They admit the passage of the act by the Kentucky Legislature in 1806, requiring the grantee of a ferry on the Ohio
river, to be the holder of the legal title in fee of the ground on
which said ferry is established; and that in 1807, the Campbell County Court granted the ferry across the Ohio river to
James Taylor.
They admit the running of the ferry by Air, as Taylor's
lessee; but deny that the estate of General Taylor has any
beneficial interest in the ferry at Newport.
It is admitted that the President and Common Council of
Newport, rented to the owners of the Commodore, under the
style of the Cincinnati and Newport Steam Packet Company,
a portion of the strip of ground in front of Monmouth street,
and a part of the esplanade; although it is denied that the said
City has any interest in said steamer or Company.
2




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They claim that said steamer Commodore is legally running
between Cincinnati and Newport, under the laws of the United
States, and by virtue of a license to engage and run in the
coasting trade, and that she has full right to do so between the
ports of Newport, Kentucky, and Cincinnati, Ohio! That she
was largely engaged in the commerce between the States aforesaid, and that there is an immense and increasing commerce,
trade and transportation of passengers, between Cincinnati
and Newport.
"The defendants, by way of counter claim, set up that they
are entitled to all the beneficial uses, interests, rights and
profits appurtenant to, issuing out of, or dependent upon the
esplanade, or strip of ground between the lots in the town of
Newport and the Ohio river."
This claim is founded upon an alleged dedication, by James
Taylor, of Virginia, of this slip or esplanade, to the town of
Newport, by the plat of 1791-2, already referred to, and the
sales of lots on 9th December, 1793, to John Bartle, Nathan
Kelly, Jacob Fowler, and others.
The lots sold to Bartle.(the unsuccessful applicant for a ferry
in 1793,) were, Nos. 1, 2, 3, 5, 6, 9, 12, 16, 17, 23, and 24, all
containing three acres each.
The deed to Jacob Fowler, for lot No. 5, dated 24 January,
1794, situated on Water or Front street.
The deed to Nathan Kelly, for lots No. 10, 11, 15, and 18,
dated 23d January, 1794.
They rely on the sale and conveyance of these lots under
the first plat of 1792, as an implied dedication of all the beneficial and equitable rights, interests and uses to the slip of
ground between the lots and Ohio river, by which Taylor
parted irrevocably with all equitable interest in and to said
slip, and held the naked, legal title in and to said strip, in
trust, for the use and benefit of the said town.




11 ]
They charge that the town of Newport was laid off to extend, and did extend to the Ohio river; and that there was no
reservation of any ground by Taylor.
They charge that the first ferry ever granted from the disputed slip of ground, was granted by the Mason County Court,
to James Taylor, in 1794.
They rely on the endorsement of Roberts' re-survey and
plat of said town, in August, 1795, of the words " The esplanade to remain a common forever," as a re-dedication of this
disputed slip of ground.
They state the town of Newport was fully laid out before the
act of incorporation in 1795, and that at the passage of that
act, James Taylor had parted with all equitable right to this
disputed slip of ground; and that all persons claiming under
him, since 1795 to this time, are trespassers; the use and
equitable interest being in Newport.
They state that James Taylor, of Kentucky, by his deed
from his father, on 8th June, 1799, acquired only the legal
title (if he acquired any thing,) to this disputed slip; and he
holds in trust for the city of Newport.
They charge that there has been a continuing and subsisting trust in the running of said ferry since 1794, to the present time; that all the profits since that period, which have
been received by James Taylor, of Virginia, James Taylor, of
Kentucky, and the executor of General Taylor, with Robert
Air, their lessee, belong to the city of Newport, and they
pray that said Taylor and Air be required to pay over said
profits of said ferry, after a reasonable remuneration, to said
city; and that the title to the defendants to said wharfage and
esplanade, be quieted.
The answer of defendants, Peter Conway, John J. Simmons,
John Sebree, deny that they have any interest whatever in the
steamer Commodore; that Conway was Master, Simmons, Engineer, and Sebree as Pilot, and hired as hands unon said boat.




12]
They charge that the said Simmons and Sebree, are licensed
engineers and pilots. under the authority of the United States;
and claim, under the license granted to said steamer, under the
coasting act, they have a right to run said boat.
They state that the increasing population of Newport, and
its vicinity, requires another ferry-deny the right of Taylor
to esplanade, &c., &c.
The answer of defendants, Daniel Wolf; Ernst Klinschmidt,
Bernard Delmer, and Thomas Dodsworth, admit that they constitute the Packet Company, and are running the Commodore
between Cincinnati and Newport, landing on the esplanade at
Monmouth street, under the license, from the President and
Common Council of the City of Newport.   They deny the
authority of the Legislature of Kentucky, to pass any law to
prohibit said boat from carrying passengers and freight from
Cincinnati to Newport, and that all laws of the State of Kentucky, attempting to restrict them  from such transportation,
are restrictive of commercial intercourse, antagonistic to the
laws of the United States regulating commerce, and are, therefore, unconstitutional, null and void.
They set up the license from the United States, and rely
upon the various matters set up in the answer of the City of
Newport.
The records in the former suits of the town of Newport
against Taylor, and the City of Newport against Taylor, with
all the depositions, together with a good deal of proof going to
show an uninterrupted adverse continued possession of this
ferry, since 1794, to the present time, by James Taylor,
and his devisees and lessees; that no other ferry has ever
been run, and the entire use of the esplanade and repairs
upon it by Taylor, for a ferry landing, at almost every point
for the last fifty-six years.
The proof conduces to show that the City of Newport has
not only for fifty years acquiesced in this claim; but that her




[13]
City Council directed her assessor in 18-, to tax or assess the
esplanade as Taylor's property, and which he resisted; not
that he did not own it, but that he allowed it as a " common,"
to the entire population, for egress and ingress, landing their
goods, &c., without charge.
The defendants, also, offered some proof attempting to disprove the possession of Taylor.
The cause was heard in June, 1854, and the injunction perpetuated against the Commodore.  Taylor's prayer for the
quieting of his title to the wharf, dismissed, and the counter
claim of the city, dismissed.
The defendants have appealed to this Court, and Taylor assigns cross errors for dismissing his claim as to wharfage.
ARGUMENT.
The questions presented in this record are not difficult or
numerous.  They are, however, interesting and important. Upon the part of the appellees it is maintained:
1.  That the strip of ground in front of the town of Newport, never was public property. That no dedication of it was
made, by the plat of 1792, or that of 1795; and that the
legal title thereto, was never divested out of the patentee, or
those claiming under him, by either of said plats, or in any
other mode.
2. That by the act of the Legislature of Kentucky, approved
14th of December, 1795, incorporating the town of Newport,
all rights, advantages and privileges in ahd to said slip of
ground, not inconsistent with a right of common on the part
of the inhabitants of Newport to said ground, were, by the express terms of said act, secured and reserved to James Taylor,
and among such rights, were the exclusive ferry franchise,
wharfage, &c.
3.  That this Court having twice adjudicated upon said act
of 1795, between the town and city of Newport, and said




[14]
James Taylor, and such judicial construction of said act and
the respective rights of said parties, thereunder, as to this slip
of ground, and the exclusive ferry franchise therefrom; the attempted claim on the part of the defendants, to a ferry, is now
res adfjudicat,-said decisions being a bar upon the city of
Newport, and all claiming under them.
4.  That the continued adverse uninterupted use by
James Taylor, of said slip of ground, and the running of the
ferry therefrom for fifty-six years, and the acquiescence of said
town and city, in such use and possession, by Taylor and those
claiming under him, with full knowledge of his claim, would
have freed said strip of ground from its supposed dedication to
public use, in 1792, if any had existed, and become re-invested
in Taylor, as private property.
5. That the statutes of Kentucky, regulating ferries, and
requiring grantees of such franchises to be the owners of the
soil, when granted, on the Ohio river, are not regulations of
commerce, but a legitimate exercise of state sovereignty, wholly
within the territory of the Commonwealth of Kentucky, never
surrendered to the General Government, not inconsistent with
any statute of the Federal Government, and are in all respects,
constitutional and valid.
6.  That the statutes of Kentucky, regulating ferrieswithin
the Commonwealth of Kentucky, on the Ohio river, are internal police regulations, not restrictive of, or inconsistent with, the
right of a free navigation of the Ohio river, as secured under the
compact between'Virginia and Kentucky, and in no way interferes with the intercourse between the states of the Confederacy.
7.  That the license set up by the defendants, under the
authority of the United States, as an enrolled vessel, employed in the coasting trade, under the act of Congress, confers
no authority upon them, to establish a ferry on the land of
Taylor, wholly within the Commonwealth of Kentucky, against
his consent, and without grant from the proper legal authority




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in this state; and that any such attempted construction of
said statute, is a palpable perversion of its true meaning and
object, and would be unconstitutional and void.
I.  The first question presented, is: was there an express
or implied dedication of the slip of ground in front of the
town of Newport, by the laying out of that town, by the plat
of 1792.
A careful examination of the bill, exhibits, and answers, in
this cause, will abundantly show, that no such dedication was
either expressly or impliedly made, and none contemplated.
There is not a particle of proof in this record, going to show
that there was any express dedication of this slip, in 1792.
There is no endorsement on the plat evidencing such a dedication, and no parol proof has been offered, going to show such
intention upon the part of the patentee, James Taylor, of
Virginia, or his attorney in fact, Hubbard Taylor, who was the
sole agent employed in laying out the town, in 1792. It is
to be remarked, that the plat of 1792, did not include this
strip of ground, nor was any part of this slip of ground now
in controversy, either surveyed or included in the plat of the
town, made by Hubbard Taylor, in 1792.  No part of it was
laid off into streets, or lots. The streets, as laid down on said
plat,in 1792, terminated at Frint street.  There is nothing in
the conditions attached to said plat, and no endorsement thereon, expressive of the slightest intention that the ground between the northern boundary of Front street and the Ohio
river, was intended by the proprietor or his agent, as public ground, or for the public use.  The northern boundary of
Front street was the northern limit of the town, as platted and
laid out by Hubbard Taylor, in 1792. The answer of the city
of Newport in this case admits that no streets were laid out
beyond Front street.  The evidence of Hubbard Taylor shows.
that no ground north of Front street was surveyed or included




[ 16 ]
in said town, as laid out by him on the plat thereof exhibited
in 1792.  The plat itself exhibits a continuous, unbroken black
line on the north line of Front street, as the northern boundary of the town, and evidences not the remotest indication that
the ground between Front street and the Ohio river, was dedicated, or intended for public use.
There is no proof of any parol dedication of the ground in
controversy, at the period of the location of this town, in 1792.
The testimony of not a solitary witness is offered, going to uphold such a dedication.  Hubbard Taylor, the agent for his
father, says, "that he avoided and refused to lay off any part' of the ground between Front Street and the Ohio river,
" either into streets or lots; nor did he lay off any of the
"streets running towards the river, beyond Front street, in
"order that all the ground between Front and the river might
"be reserved to said Taylor, and also to enable him  to hold
"the exclusive right to the ferry, across the Ohio river in front
"'of said town.  Ie states that his agency for his father,
"James Taylor, of Virginia, ceased in 1793, and no street
"was ever laid out by him, to the Ohio river."
This statement is wholy and entirely inconsistent with any
verbal dedication of the slip in question, by him, and would
have been destructive of the great object which he states it
was his intention to perpetuate, viz: a retention of this slip
by his father, for purposes in his deposition set out. If, then,
there was no express written dedication of this slip, and no
parol dedication, nothing upon the plat evidencing an intention on the part of the proprietor or his agent, to give this
slip to the public, in 1792; some act must then have been
done by said agent in the laying out of said town, from which
an implied dedication will result to the public, of this ground
in controversy. Does this record furnish the evidence of any
such act.
Let it be remembered, that James Taylor, of Virginia, was




[17]
the patentee of the ground in controversy, and entered into the
possession of it many years prior to the year 1792. If it is
to be taken from him, or those claiming under him, it must be by
some clear, unequivocal, well defined act of his, proving a dedication, or wholly and directly inconsistent with the retention
of this ground, after the performance of such act  A dedication to be implied, must be under circumstances which clearly
indicate an abandonment by the patentee, of the use of this
slip, exclusively, to the public.  4 Camp, N. P. 16-11 East.
370 —3 D. & E. 265~-Jarvis vs. Dean, 3 Bingh. 447 —22 Pickering 75.  There must be no declarations of the owner, of any
reservation, or any other declaration inconsistent with his clear
assent to such dedication. Levett vs. Wilson, 3 Bingh. 116,
7, Leigh. Va. R. 546.  The idea of a dedication to the public,
of a use of land for a road, (and a fortiori for a public wharf,)
must rest on the clear assent of the owner, in some way, to such
dedication.   8 Adolphus & Ellis 99-1 Hill 191-19 Wendell 128-6 Peters 431- Sargent vs. Ballard, 9 Pickering 256,
3 Kent's Com. 445-1 Camp. N.P. 262-9 How. S. C. R. 30.
Now what is the act from  which the assent of James Taylor, of Virginia, to a dedication of this ground is to be inferred?
If I correctly comprehend the argument, on this point, of
the learned counsel opposed to me, it is, that as the town of
Newport was laid out on the river, a plat showing its location
on that river, with no reservation on the plat of this ground, between Front street and the Ohio river, the exhibition and sale
of lots under this plat, in 1792, that these are acts which afford abundant ground from which a dedication of this slip of
ground to the public use, by the consent of the proprietor, is
to be implied.
If there were nothing in the record explaining these acts,
giving to them their fullest force, there would be great force
in this argument.  Thus if a man makes a plan of a city, oa
3




[181
his land, with certain streets and alleys laid down between the
lots, and he sells them under this plat, it is presumed that he
intends to dedicate such streets and alleys, and he is estopped
to deny it.  This acknowledged and familiar principle is recognized in a number of adjudged cases of high authority. 7 Howard, U. S. 196 —6 Peters 106 —10 Peters 718 —4 Paige, 510.
So too, in this Court, it has been held, that a location on
the river is sufficient evidence that the town so located, extends
to the water. Trustees of Maysville vs. Boone, 2 J. J. M. 224;
Giltner vs. Trustees of Carrolton, 7 B. M. 680, and in the city
of Louisville against Bank of United States, 3 Ben. Monroe,
144, it was so held, even though there was an unbroken black
line in the plan of the town, on the side of Water street next
to the river, and that the intervening space was not divided
into lots or squares.
But the evidence in this record does not render this principle applicable. Undoubted law, in this State, we admit it to be,
whenever a state of fact is disclosed which authorizes its application. In the cases referred to, and others of a similar
character which might be cited, (especially in Rowans' Executors against the town of Portland, 8 Ben. Monroe, 232,) the
question was, whether upon the face of the map a plan of the
several towns cited in the various cases, located upon a large
navigable river, having a strip of ground between the street
next to the river and the river, such town was to be regarded
as extending to the river, and whether an intervening slip of
ground between the streets next to the river and the river, in
these towns, were to be regarded as dedicated by the original
proprietor to the public use. Where nothing was said on the
plat, touching said strip of land, and even where there was an
unbroken black line between the street and the river, the Court
held that said towns were to be considered as extending to the
water, and the intervening ground was to be regarded as intended for public use. And why? Because, looking to the map alone,




[191
they think it would be almost as reasonable in a proprietor, to
sell as private property the river itself, as the ground lining its
margin,-the occlusion of which, would obstruct the communication between the city and the river. The object of locating a town was, to enjoy the benefit of its facilities as a highway. Looking then, to the map unexplained and alone, they
give that construction which will carry out this supposed inten.
tion of the founder of said townThere is nothing however, in any of the cases in Kentucky,
(carried, as I think to an extreme length,) which intimates,
that if there be evidence to rebut or repel such presumptions,
or to show that said town did not include said strip, and was
not laid out, surveyed or extended to the river, that still the
map, without an endorsement of dedication, would carry them
to the same results!  Far from it.  These cases go only to
the point that an unbroken line, and the absence of any words
on the intervening slip, are not sufficient to oppose the conclusion, in the absence of other proof, that the intention of
the original owner was to dedicate the slip to the public use.
In the case at bar, we have not only an unbroken line on
the north side of Front street, but we have the evidence of
the agent of the proprietor, laying out the town, that the slip
in controversy, was not only never included in the town or
made a part of the plat, but that it never was surveyed, and
that this ground was expressly reserved by the proprietor from
constituting any part of the town, and the reasons given for
such reservation. Is it denied that this reservation was competent?  Such a denial assumes the principle, that the owner
of the soil could not dispose of his property in his own way,
and that he would be incompetent to lay out a town near a river,
without extending it against his will, to the water's edge. The
statement of such a proposition carries with it, its own refutation. In the very case of Rowans' Executors vs. the town of
Portland, so much relied on by counsel upon the other side,




[20]
the Court say: "It was entirely within the power, and at the
"discretion of the proprietor, in the first instance, to determine
"how much or how little of the intervening space should be
"left open to the public."  8 Ben. Monroe, 246.  He had a
right to withhold it all, and run the risk of having no lots
sold, or to dedicate it, with the prospect of having all the lots
sold at an enhanced price.  The only points decided in that
case, or similar ones by our Court, or any other, is, that where
the plat is silent on the subject of the dedication of a slip of
ground intervening between the lots and the river, that an unbroken black line, together with intervening space, are not sufficient to rebut the presumption arising from the location of
the said town on the river, that the proprietor intended said
open space for the public use of the lot-holders in said town,
in affording them free access to the river.
There is, however, not an intimation in any one of the
cases, that these presumptions can not be repelled by proof;
that the slip was reserved as private property, and never included in the town. If this be shown, as we think it has abundantly been, by the testimony of Hubbard Taylor, then the
cases cited militate for, and not against us. And why? The
right of the inhabitants of a town to an easement over a space
like this, where it exists at all, rests upon the supposed fact,
that the original proprietor has been compensated for the surrender of his interest therein, by the increased readiness of
sale, and enhanced value imparted to the lots, by the prospective use by the public of this slip, as a means of ingress and
egress, and the commercial advantages of a navigable river.
This surrender by the proprietor, of his private right in such
a slip, to prospective public use, is evidenced by his solemn acts
of dedication and grant of easements; or by such acts from
which a dedication can be inferred.  Where, however, there is
evidence to show, that in the first sale of lots, this slip was retained by said proprietor, and was not included in the plan, and




[ 21 ]
was not intended to constitute a part of the town, the purchasers of lots bought with this full knowledge of such retention
of the same, as private property; and so far from an enhanced
value in the sale of lots, a corresponding depression would
have taken place, and no compensation to the owner could
have taken place to the proprietor. The reason on which former decisions rested being taken away, their force is destroyed.
I may here be met with the argument, that after a dedication of this slip, and a parting with the title by the proprietor,
there could be no such parol reservation, as Hubbard Taylor
attempts to prove. If this postulate be granted, the conclusion
would be irresistible. The error, however, is in the assumption.
We are the owners of the fee, and in the possession of this
slip.  We deny the dedication of it, and call for the proof.
The plat of the town does not extend to the river. There is
an unbroken line separating it from the river. The uncontradicted testimony of him  who laid out the town in 1792,
supports the fact that it never was surveyed, included, and
never did constitute a part of the town. But we do not even
rest it here. John Bartle was the purchaser of certain lots at
the first sale of lots, in 1792. His lots were on Front street,
and if the statement be true in the answer, that Front street
was the northern boundary of the town, he would have been
the owner of the ground, and entitled to a ferry.  He applied
to the Mason County Court for a ferry, in 1793, from his lots in
Newport, which was granted him, and in January, 1794, a ferry
was granted to James Taylor, who immediately prosecuted a writ
of error to the order of the Mason County Court, granting John
Bartle his ferry, which order was reversed by this Court, in
1798, upon the ground that it did not appear that Bartle was
the owner of land bounding on the river.  The grant to James
Taylor, from this disputed slip, was acquiesced in by all the
purchasers of lots.
This reversal of Bartle's grant to a ferry, strongly corrobo



L 22 ]
rates Hubbard Taylor's testimony as to this slip, when taken
in connection with the grant of a ferry to James Taylor, in
17 94, and the acquiescence of all purchasers of lots in Newport,
at that time, of his exclusive right to a ferry. It is almost an
irresistible conviction, that all of the purchasers of lots, in 1792,
bought with full knowledge that this slip was not included in
the town of Newport, was not intended for public use, but was
reserved by the proprietor, in exact accordance with Hubbard
Taylor's testimony.  If further testimony be required, that
this slip did not constitute a part of the original plan of Newport, in 1792, it may be found in the fact, that when a re-survey was had by Roberts, in 1795, the town was enlarged, and
extended from Monmouth street to East Row, on the eastern
boundary.  One hundred and eighty acres was laid off in this
enlarged re-survey, in 1795, and that did not include this
strip; nor was it surveyed by Roberts, or included in the one
hundred and eighty acres designated for the town.  6 J. J.
Marshall, 139.  If there had been a dedication of this strip, in
1792, and it was then a part of the town of Newport, how can
it be rationally accounted for, that when a re-survey became
necessary, for an enlargement of the town, in 1795, a portion
of its former limits, and so important a portion too, as affording
those commercial facilities so strongly dwelt on, should not have
been surveyed and included within the boundaries of the town?
In addition to all this, the attention of the Court is called to
the conveyance of James Taylor, of Virginia, to James Taylor
of Kentucky, in 1799, in which this strip is not only conveyed,
but the ferry franchise is particularly designated; a fact wholly
inconsistent with a dedication of it in 1792, to the public use.
In every aspect in which the subject of laying out the town,
in 1792, can be viewed, the conclusion is irresistible, that
this slip was reserved from that part of the land, set apart and
laid out for said town   The idea of an intent to dedicate this slip to public use in 1792, is repelled, not only




[ 23 ]
by direct testimony of the only active agent, who surveyed and
superintended the laying out the town, but by the other facts
and circumstances herein before detailed, which can be made to
harmonize upon no other hypothesis, than that of its exclusion
from the limits of the original plan of the town.
II. In 1795, it is probable that the inconvenience resulting to the inhabitants of Newport, from an exclusion of the
ground in front of said town, from its defined limits, as laid
out in 1792, and its reservation by the proprietor, began to be
felt. It had not yet been incorporated, and we have a right to
infer, there were but few inhabitants. In August, 1795, a resurvey was made by Roberts, and on the 14th December, 1 795,
the town was incorporated by an act of the Legislature, approved that day.  By the first section of that act, "it is enacted that the land comprehending the said town, agreeable to
a plat made by John Roberts, be, and the same is hereby vested in Thomas Kennedy, &c., as trustees." By the seventh section of that act, it is provided, "that such part of said town as
lies between the lots and rivers Ohio and Licking, as will appear by reference to the said plat, shall forever remain for the
use and benefit of the said town for a common: reserving to
the said James Taylor and his heirs and assigns, every advantage and privilege which he has not disposed of, or which he
would by law, be entitled to."
This is the first intimation of any public use or right to this
slip. The streets as laid down under this re-survey, did not
extend to the river, and this slip, not included in the 180
acres as set apart for a town, is now, by the seventh section
of the act of incorporation made a part thereof, subject to the
important reservation by James Taylor, of every privilege and
advantage not disposed of, or which by law, he could be entitled to. Upon the Roberts plat, the space of ground between
the lots and the Ohio river, was designated, "esplanade."
The question occurs what rights were included in the re



[ 24 ]
servation by James Taylor contained in seventh section of the
act of incorporation?
We answer, that the exclusive ferry franchise, as well
as all incidental rights of wharfage.  As to the exclusive
right to this ferry on behalf of Taylor, we are saved any
argument, because the point has already been settled, and
adjudicated on by this Court. The ferry had been constantly run across the Ohio from Newport, from 1794, by James
Taylor of Virginia, under his grant from the Mason County
Court, in that year, until the year 1799, when he conveyed
it with all his interest in the ground in front of Newport, to
his son, General James Taylor, of Kentucky. It was run by
him exclusively and continuously, until 1807, when, in consequence of the passage of the act of 1806, he applied in person, to the Campbell County Court, for a grant of this ferry,
in his own name, which was granted him.  He continued to
run it until the period of his death, in 1848, and it has been
run without interruption by his executor and heirs, ever since,
until this effort of the defendants.
In 1830, the trustees of Newport applied to the Campbell
County Court, for the grant of a ferry from Newport across
the Ohio, which application was overruled, and an appeal taken
to this court, when the judgment of the Campbell County
Court was affirmed.  A reference to the opinion of this court
in that case, 6 J. J. Marshall, 134, will show that the exclusive ferry privilege was in James Taylor, that the right of
common as secured to the people of Newport, was not inconsistent with this exclusive ferry privilege in Taylor. The court
incline to the opinion that the legal title to this slip or common in front of said town, was not vested in the trustees by
the act of 1795, but still remained in Taylor.  But if the
divestiture of the legal title out of Taylor, had taken place, their
judicial construction of the act of incorporation was, that such
retention of the legal title by Taylor was not necessery to




[25]
secure him, not only the ferry franchise, but all other advantages
intended by the compact between the said Taylor and said
town, and which the Legislative act of incorporation, fully effectuated. This court also held, that the expressions in the
seventh section of the act of incorporation, "every advantaqe
and privilege, which he, Taylor, had not dispased of," could not
be restricted to the ferry which had been granted him, but,
that the words used by the Legislature, imported other advantages and privileges, and that this reservation was fully legalized
by Statute. What other privilege or advantage more important
than that of wharfage, when the town should become a city?
This court also held, that the following words in the first section of the act of incorporation of Newport, "except such parts
as are hereafter excepted," applied also to the common, and
was a clear indication in addition to the language in the seventh
section, that the proprietor did not intend to part with the legal
title to the common. The attention of the Court is called especially, to the fact that both the plats of 1792, as well as that of
17 95, were before the Court as is shown, not only by a reference
to the record filed as an exhibit, with the plaintiffs petition, but
by a direct reference by this Court to Hubbard Taylor's testimony, already commented on.  If, therefore, this Court, with
the plats of 1792 and 1795, both before it, with the endorsement on the plat of 1795, of an esplanade or common, judicially adjudged, that the plat of 1795, and the act of incorporation of Newport, did not divest the proprietor of the legal title
to the common, nor deprive him of the benefits of an exclusive
ferry privilege from said common, as well as all other privileges
not inconsistent with a right of common, how could the plat
of 1792 have that effect?  Is not, therefore, this decision an
adjudication upon both plats, and a full adjudication on his title
to this common, and all its incidental privileges not inconsistent
with a right of common?  And again, if the right of an exelusive ferry privilege in Taylor, as held by this court, is not
4




[ 26 ]
inconsistent -with  a right of common, as secured to the towr,
in what parti, ula r does a right to collect wharfage, reserved
in the same way  upon wharves which Taylor has contributed
largely in erecti ag, and over which he has exercised the
exclusive use, mili tate against the right of common in the law?
We refer the Co  itrt, in support of this claim of wharfage, to
I Yeates, 167; 9  Sergeant & Rawle, 26; 3 Watts, 219; as
abundantly establ ishing the fact, that if the legal title to this
common is in Ta rdlor, with the exclusive ferry privileges, and
that other advants iges not inconsistent with a right of common
have been secured to him by the Legislative act of incorporation, his right to c )llect wharfage is unquestioned.
The case of Row an's executors vs. The Town of Portland, 8
Ben. Monroe, 254, does not militate against this claim; and
for the simple reasion, that the Court held, in that case, that
there had been a public dedication by Lytle, of the slip of
ground on which the wharves had been erected.  The Court
deeming the right to erect wharves, an individual right, no one
had the privilege, against the consent of the town, to erect a
wharf on ground dedicated to it; but that such a right, in
consequence of the dedication. of the common, was in the town
itself, and might be used by it in increasing its commercial advantages, by building up wharves, and charging moderate tolls.
If the town possessed the right, as in that case decided, it is
clear:no one else could possess it.
In the case at bar, however, by the opinion of this Court, in
the case of Trustees of Newport against Taylor, already cited,
Taylor is clothed with the legal title to this common-has resered every advantage and privilege not inconsistent with a
right of common.  Is the right to erect wharves and charge
Wharfage; inconsistent with this common?  Far from it.  As
this Court remarked, in Rowan vs. Town of Portland, 8 Ben.
Monroe, 254, the making of a proper wharf, with reasonable
tolls for its use, would not necessaralyobstruf t the public




.[27]
access to the river, but -might be advantageous  to the tirwn, as
a place of commerce; aud in that case, was one of the ues; for
for which the slip was dedicated; and it was r tot understood
rto be reserved as an individual right, by the p roprietor.  To
render the question, as we think, perfectly cone lusive, we beg
to quote the language of this Court, in the case last cited, on
the direct point of a fight to wharfage, where tl lere has beenp
such a reservation of private rights by the propl:ietor, as thi
Court has decided in 6 J. J. Marshall, was reserve d by Taylor.
The Court say —  Although it could not have bN )en urged in
support of the public right to the destruction of, rivate rights,
plainly reserved in the dedication, it may and s ioould operate
as corroborative of the public right, when claime d as a part of
the dedication, to the beneficial enjoyment of which it is essential and which was made without any reservation of private
iight, either express or implied." 8 Ben. Monroe, 258.
Taking this decision as law, and harmonizing it with the
the judicial construction given by this Court, to the act of
1795, incorporating the town of Newport, in which it is adjudged, Taylor reserved, by legislative enactment, every right
and privilege not inconsistent with a right of common, we
think his right to both a ferry and wharfaige, clear and unquestionable.                    c
III. The question now occurs, what effect have the two adjudicated cases of Trustees of Newport against Taylor, and the
city of Newport against Taylor's heirs, upon the rights of the
defendants in this controversy?   As to the ferry right, we
should regard that there could be no diversity of opinion, that
the town and city of Newport were completely barred by the
adjudicated cases referred to. Such I understand the ruling of
this Court to have been, in 11 Ben. Monroe, 363, where Judge
Graham, in delivering the opinion of the Court, says: " Ordizarily, the failure of one application for a ferry, will not forbid




[ 28]
bid another application by the same party. At one time there
may be no necessity for a ferry, and at a subsequent period the
public good may imperiously require it. At one time the applicant may have no such interest in the land as to entitle him
to such a privilege; but he may subsequently acquire such an
interest.  In these and all such cases, the order of, or a judgment in one case will not prevent another application. But
this case is presented in a different aspect.  Here, the city of
Newport has precisely the same rights and interests which the
town of Newport had in 1830.  No new or additional rights or
interests have since accrued to the city.  If the act of 1795,
vested in Taylor the exclusive right to'ferry privileges, nothing
has occurred since, so far as appears from the record before us, to
take it fiom him or his heirs. In the case of Morgan's heirs vs.
Parker, (1 Dana, 144,) it is said, that the Court, having by two
decisions, settled the identity of an object, called for in an entry, will, in subsequent cases, upon the same evidence, adhere
to the former decisions.  This was said in a controversy, not
between the same parties. If that be a sound principle, as to
the mere identity of an object, certainly it is much more conclusively applicable, in a case involving the legal construction
of a statute."
The learned Judge then concludes, that this Court is not
authorized to depart from the decision of the same tribunal in
1831, in its exposition of the statute incorporating the town
of Newport, by which Taylor's right to a ferry was reserved.
As the owners of the Commodore claim  under the city of
Newport, all their right to this common, they are equally
bound as privies by the foregoing decisions, though they were
not parties.
It is gravely argued, however, by the learned counsel, opposed to me, "that as these decisions are upon questions of law,
"they are of no more weight in this case, than other decisions
"of the same court upon questians of law, arising on similar




[29]
"facts in other cases, and may be rebutted by such other
decisions."
If the object of this proposition is to claim for this Court,
a right to overrule its former decisions, and after being so
overruled, that they are no longer of any binding force, I
admit the statement as undoubted law.
I challenge, however, the productionof a solitary case intimating a dictum  overruling either of the cases in 6 J. J.
Marshall, or 11 Ben. Monroe.
It was warmly urged in the Court below, that though not
expressly overruled, the case in 6 J. J. Marshall, had been
virtually overruled by the cases of Rowan's Executors against
town of Portland, 8 Ben. Monroe, 234; Trustees of Dover
against Fox, 9 Ben. Monroe, 200, and that the doctrines of
later cases were wholly inconsistent with those in 6 J.I J.
Marshall.
It might be a sufficient reply to this argument to say, that the
case of the city of Newport against Taylor's heirs, in 11 Ben.
Monroe, 362, is a later ruling than either of the cases relied
on by counsel for overturning it.  If the case of Rowan's
Executors against Portland, or Fox against Dover, had contained doctrines repugnant to that of the town of Newport
against Taylor, it is probable this court would have overruled
that case, and not have announced that they considered themselves bound by it. I deny, then, that there is anything in
the cases of Rowan's Executors against Portland, or of Dover
against Fox, inconsistent with the principles settled in the two
cases of Newport against Taylor. The results and conclusions
are entirely distinct and different in the cases, and the state of
facts requiring the application of legal principles were entirely
dissimilar. So far from a diversity of principle in any of these
cases, I confidently rely upon both the cases of Rowan's Executors vs. Portland, and Dover against Fox, as direct authority, under the state of facts exhibited in this record, for the




L30]
support of Taylor's claim to the exclusive ferry right and
wharfage
Had there been any proof, in the case of Rowan vs. Portland, like that of Iubbard Taylor in this record, is it believed
that the town could have retained that ferry?  Had it been
shown in that case, as it was in the case of the town of Newport against Taylor, that the original plan of the town did not,
and was not intended by the proprietor to include the slip
binding on the river, is it seriously believed that the decision
of this Court would have given the slip to the town of Portland?  Would the presumptions of a dedication, arising from
the plat of a town on the River, not be capable of being
contradicted and explained by proof aliunde?   Had there
been such a compact between Lytle and the town of Portland,
carried out in good faith by a legislative enactment, like that
of 1795, between Taylor and the trustees of Newport, reserving and guaranteeing to said Lytle, not only an exclusive
ferry right, but every other advantage and privilege, which
by law he was entitled to, not inconsistant with a right of common; can it be doubted that the decision of Taylor and Lytle in
their respective cases would have been dissimilar? To give
a negative answer to this question, is to shut our eyes to the
total diversity of evidence introduced into the two cases, and
to which entire different state of fact is to be attributed, the
different conclusions in the two cases.
The case of trustees of Dover against Fox, 9 Ben. Monroe, 200, is even still more dissimilar in its facts from the
Newport case, than that of Rowan against Portland, just
commented on.  In the case of Dover, Fox sold threefourths of fifty acres to Murphy, Waters and Duke, for
the purpose of laying out the town of Dover, which was
done.  They made a plat of the town, which was exhibited
at the sale of lots, upon which plat all the space between the
lots and the river, is designated as Water street. At the first




[31]
sale of lots, it was announced by the auctioneer, that the ground
fronting on the river, was for the benefit of the town, as in the
Newport case, it was announced by Hubbard Taylor, that the
slip next to the river, was for James Taylor, and not included
in the plat.   The question in the Dover case, was, whether
Fox or the Trustees were entitled to the ferry right?   This
Court under that state of fact, gave the ferry to the Trustees
of Dover, and say that whether Fox had parted with the legal
title or not, was immaterial. If he had, then the title was in
the Trustees. If he had not, why then, that he held it in trust for
them, and they were entitled to the beneficial use of the ferry.
It is wholly unnecessary to compare this case with that of
the Trustees of Newport vs. Taylor, or show the dissimilarity
of fact running throughout the two cases.
The case last cited, of Dover against Fox, is relied on by us,
however, as supporting the position, that if by this act of 1795,
the legal title to the esplanade had vested in the Trustees of
Newport, still Taylor would have had, not only the wharves
and a right to wharfage, but also the ferry right,-having reserved these beneficial uses and advantages to himself from
this slip, by the compact between himself and said town of
of Newport, in 1795, and acquiesced in ever since. This Court
has given judicial construction of that act of 1795, and
twenty years after that first decision, still adheres to it. By it,
Taylor is declared to have reserved every right and advantage
in this slip, to which by law he would be entitled, not inconsistent with a right of common. This result would follow by the
decision of Dover against Fox, whether the legal title was in
Taylor or the Trustees.  Is then, the right of wharfage or ferriage inconsistentbwith this right of common?  By the decision
of the cases on 6 J. J.   Marshall, and 11 Ben. Monroe, the
right of ferriage is settled as not inconsistent, and in Rowans'
Executors. s. Portland, 254, it is expressly ruled, as already
shown, that a right of wharfage is not inconsistent with a right




[32]
of access by the people to the river, but that the building of
wharves by the original proprietor of the town, where the right
was reserved, would be beneficial to the town, by increasing its
commercial advantages.  By the words, then, "every privilege
and advantage," as used by this Court, in 6. J. J. Marshall, as
having been retained and secured to James Taylor, is included
the right to wharfage and exclusive ferriage.  If this be so, it
follows that these defendants owning the Commodore, claiming
under the town, are bound by the former decisions, and that
the questions of ferriage and wharfage are res adjudicata.
IV. We confidently rely on the position, however, that if this
Court would have excluded Hubbard Taylor's testimony, and
the other strong extrinsic facts supporting it, going to show that
this slip was never dedicated to public use, and from the face of
the map of 1792, inferred a dedication, it would long since
have been freed from said dedication by the continued adverse
use by Taylor, and those claiming under him, for more than
fifty years; and the acquiesence therein, by the town of Newport.  The testimony of McArthur, who states, that as late
as 1843, he was, by direction of the City Council of Newport, as an assessor of said town, directed to assess this esplanade to General Taylor, and which he did on his books. The
testimony of George Perry, who proves, that while as a member of the City Council or Board of Trustees, the subject was
discussed and the Trustees of said town acquiesced and acknowledged said strip to belong to Taylor.  The united testimony of Jacob Fowler, whom the defendants prove to have
been a purchaser of lots in 1792, supported as it is, by Carter, Rugg, Tupman, show  incontestibly, that from  1804,
Taylor has not only exercised acts of ownership over this slip
by quarrying rock, continuously running.Riiferry from almost
every part of the esplanade, from the mouth of Licking to
East Row, forbidding trespassers; but that his exclusive control and ownership has been recognized and acquiesced in by
the town of Newport and its inhabitants for the past fifty years.




L33]
That the statutes of limitation applicable to a case like
this, and that the public right, as growing out of a dedication,
had once existed, was subject to be defeated and divested by
such a possession, was expressly held by this Court in Rowans'
Executors vs The Town of Portland.  8 Ben. Monroe, 259.
The proof of Perry goes to show that the trustees, in 1815
or 1816, knew of Taylor's clainl to the esplanade, and acquiesced in it, while his exclusive ferry franchise from every part
of said ground, was continuous for fifty-six years.  If they,
therefore, chose to slumber on their rights, with their belief of a
dedication, it is too late now, to assert them if they had,
against all our strong evidence, ever existed.
The permission given by General Taylor, to the citizens of
Newport, to use this space as a common for ingress and egress,
or for other purposes, in subordination to his rights, did not
interfere with or destroy his possession.  Irvin vs. Dixion, 9;
S. C. Howard, 33.  In that case the Court say:  "From the
"very nature of the wharf property, the access must be kept
"open for the convenience of the owner and his customers;
but no one ever presumed that the property thereby became
(' public instead of private, and especially under such numer4 ous and decisive circumstances as existed here, rebutting
" that inference."
The limitation was undoubtedly complete to quiet and defend any dedication made in 1792.
V. It is argued upon the other side, that as the intercourse
between the port of Cincinnati, Ohio, and the port of Newport,
in Kentucky, by  steamboats crossing the Ohio river, with
freight and passengers, is now a matter of convenience between
and among the States, carried on by navigation, and as such,
is prohibited and regulated by the Federal Government; that
consequently, no state can prohibit this Commerce by any local statutory provision, nor grant any exclusive license or privlege to carry it on, under the name of ferry franchise, and,
that any such statutes are null and void.




[ 34]
A full answer to this proposition of learned counsel on the
other side, might be offered by an emphatic denial of the existence of any statute in the Commonwealth of Kentucky, on
the subject of ferries, or otherwise, as interfering, in the slightest degree, with the free navigation of the Ohio river. The
unrestricted freedom of this national highway, for the purposes
of navigation, is admitted to its fullest extent.  The right of
a free navigation of the Ohio, as guarantied by the compact
between Virginia and Kentucky, to all the citizens of the
United States, hitherto unquestioned and undenied, is not at
all inconsistent with, or antagonistic to, the undeniable and unlimited jurisdiction of the Commonwealth of Kentucky, over
all persons and things, within its territorial limits, where that
jurisdiction is not surrendered or restrained by the Federal
Government.  The enactment by  the Kentucky Legislature, of any of its statutes on the subject of ferries, operating
exclusively within its own territorial limits, is so undoubted
an exercise of State sovereignty, upon matters entirely internal and municipal in their operation, that it is at least novel
to find so undoubted a right, at this day, questioned. HIow
State jurisdiction, as to ferry landings, purely local in its operation, and hitherto unquestioned in its exercise, is to be
abridged and overthrown, from the acknowledged and guarantied free navigation of the Ohio, is still more difficult of apprehension.
In 1806, the Legislature of Kentucky declared by statute, that no ferry should be granted to any one on the Ohio
river, who was not the owner of the fee to the land on which
said ferry was granted.  The necessity and object of such a
statute upon the Ohio, is self-evident. Its application extended
exclusively to that river, and its provisions was justified by
every principle of necessity and safety for the protection of
certain property within the State. An attempt to destroy the
efficacy and  safeguards derived  from  such a source, by a




[351
complete overthrow of all our statutes concerning ferries on
the Ohio river, is a bold assumption; the more important and
alarming atthe present day, since we witness daily the loss of a
large amount of property, which their force has been impotent
to resist.  Upon what ground does this assault rest?  It is alledged that as the steamer Commodore has been entered and
enrolled as a licensed vessel, in the Custom House in Cincinnati, under the coasting act of the United States, that she
has a right to navigate the Ohio river.  We admit it.  And
it is further alledged that as a refusal to permit her to land
upon the private wharf of James Taylor, against his consent,
or a refusal by the proper constituted municipal authorities of
the State of Kentucky to grant her a ferry license, without
a compliance with any of the requisites of our statute on the subject of ferries, that such refusal is an infringement of the rights
of the license of the Federal Goverment —so granted to this
vessel-is a virtual denial of the free navigation of the Ohio;
and that all such statutes, being in conflict with the commercial
regulations of the United States, under which said license was
granted, the regulations of commerce having been surrendered
wholly to the Federal Government, such State laws must yield.
This, if I comprehend it, is the ground on which our ferry
statutes are to be overthrown.  It is the only plausible basis
on which an argument against their constitutionally can rest.
Let the question be met!
Have the States a right to enact laws, prescribing the terms
and conditions upon which ferry franchises shall, or shall not
be granted upon navigable rivers, that constitute the boundaries betwera separate States?
That the States possessed the power, before the adoption of
the Federal Constitution, is undoubted.  There were then,
thirteen Sovereign States, wholly independent in themselves.
Prior to the adoption of the Federal Constitution, they had
been united under certain articles of confederation, entered




[361
into for the common purpose of achieving and maintaining
their independence.
These articles proved inefficient for the avowed purpose of
their adoption, and was followed by the adoption of the Federal Constitution.  That instrument was the fruit of wise and
patriotic councils. It was framed by the representatives of
delegates sent and elected by these Sovereign States. It was
adopted by these same States as States. It was formed upon
the altar of patriotism, but formed, I must be permitted to
say, under the natural feeling, that the infant government
was to be the weaker instrument as compared with the constitutions of the thirteen Sovereignties which it was to unite. To the
real apprehensions of the framers of the Constitution in its inability to resist the State governments, (increased by the perception of the weakness of the articles of Confederation, which
proved ineffectual,) are to be attributed the latitudinous construction of the powers of the Federal Government, over that
of a strict construction of its authority to the granted substantive powers, and those absolutely necessary for its execution.
Great as their wisdom was, they did not perceive in the infantile work of their hands, the mighty mastodon, whose colossal
strides, are now so prone to break down all the bulwarks of
State sovereignty. This Constitution of the thirteen Sovereign States, contained the specifications of the powers granted,
and the purposes and object for which they were granted.
An examination of the Constitution will show, that it contains a grant of exclusive powers, wholly yielded up by the
States.  It contains also a class of concurrent powers, to be
exercised concurrently by Federal and State Governments.
There are certain other powers exclusively to be exercised by
the State Governments. All powers not granted, are reserved
by the States. To make a power exclusive in Federal Government, it should so expressly be declared, unless an exercise of
that same power by a State Government, would be incompatable




[ 37 ]
and inconsistent with a similar power by Congress, or there
is an express prohibition to the States.
With this short and imperfect sketch of these powers, there
can be no doubt that Kentucky, as a Sovereign State before
the adoption of the Federal Constitution, had she been in
existence, would have had the power to have made any
regulation she thought fit, touching the grant of ferries, or
the regulation of them.  Vattell says, "The Sovereign may
forbid the entrance of his territory, either to foreigners in
general, or in particular cases, to certain persons, or for certain
particular purposes according as he may think it advantageous to the State.  Iook 2, chapter 7, ~ 94.  So also,
since the lord of the territory may, whenever he thinks
proper, forbid its being entered, he has, no doubt, a power to
annex what conditions he pleases, to the permission to enter.
The question occurs, if the power existed, has it been taken
away by the Federal Constitution?
It is argued upon the other side, that it is a commercial
regulation, and that the power to regulate commerce is, by the
Constitution of the United States, granted exclusively to Congress, that the Commodore under the license of the United
States, can not be restricted by a State law, which must give
way to the higher Federal one.
We deny that it is a commercial regulation, and if we
establish that it is not, the question is ended. We maintain
that ferry privileges within Kentucky, are mere police regulations, wholly and exclusively within State jurisdiction.
In the forty-fifth number of the Federalist, we find, "The
"powers reserved to the several States will extend to all
"objects, which in the ordinary course of affairs, concern the
"lives, liberties, and properties of the people; and the internal
"order, improvement and prosperity of the State."
If the statutes of Kentucky, regulating ferries on the Ohio
river, be tested by this standard, it is clear that the power




L 38 ]
to-enact them, is clearly within the delineation of power, as extracted from the Federalist. Looking to the place, we find it
on the Ohio river, wholly within the territory of Kentucky, and
therefore, within its jurisdiction.  Looking to the persons to
whom the grants are made, they are land owners within the
same territorial limits; and, of course, within the same jurisdiction. If the purposes and objects of these statutes be scrutinized, it will be apparent, that their enactment was to subserve the commercial facilities of the people of the Commonwealth, by keeping up constantly safe ferries across the Ohio
river, and not leaving these facilities of crossing this river so
essential to commerce, to the mere caprice of any who might establish them to-day, and as quickly abandon them to-morrow.
If we look to the requisition of these statutes, that the grantees
of ferries on the Ohio, should,be men of substance, and not of
straw; that they should be the owners of the fee simple title
to the land on which said ferry was granted, we shall find that
the welfare of the people sternly demanded their enactment.
Lastly, if the penalties denounced by the statute be looked
into, requiring the owners of all ferries on the Ohio river, not
less than the keepers, to be strictly amenable for all loss of
property, escaping or destroyed at said ferry, the Legislative
intent in the exactions to protect the property of the people
of the whole Commonwealth is manifestly self-evident. While
it was highly necessary and important to have the Ohio river
dotted with ferries, it was equally important to guard these
channels of ingress and egress owing to the particular location of the river, that the benefit of free intercourse and commercial advantage to be accomplished by their establishment
should not become seriously detrimental, by affording the
means for the escape of slave property.
To deny to a State the unlimited jurisdiction over all persons and things within its territorial limits, unless restrained by
the Constitution of the United States, is to deny to it the




[39]
essential means of accomplishing that which it was the purpose
of the State Governments to accomplish; the protection of life,
liberty and property. Had the power been denied to the State
Governments of exclusive control as to all municipal and internal
police regulations, it is abundantly manifest, that the Federal
Government could not have been formed.  The very safety to
persons and property of the people of the States, show that
such a power could not have been surrendered or restrained;
but that it is complete, unqualified and exclusive in the State
Government.  Such was the unanimous opinion of the Supreme
Court of the United States, in the case of City of INew York
against Milne, (11 Peters, 130, 138,) as expressed in the lucid
opinion of that eminent Jurist, P. P. Barbour, and from which
the foregoing statements as to the powers of the State Governments, have been almost literally taken.
If then, these ferry statutes are mere internal police regulations, under the authority of that case, together with many
others that could be cited, they are clear exercises of legitimate State sovereignty, never surrendered or restricted, but
retained by the States, and undoubtedly constitutional and
valid.
VI.  It is still insisted, however, that inasmuch as these
ferry franchises are exclusively granted to the owners of the
soil, that where these grantees of such privileges own the land.
ing on the Ohio river, for some distance, it empowers them to
prevent the landing of other boats, restricting thereby, the
right of the free navigation of the Ohio and interfering with
commerce, the exclusive regulation of which has been committed to Congress.
In support of this doctrine, we are referred to the case of
Gibbons against Ogden, 9 Wheaton 1, which is confidently
relied on as a case directly in point.
The point decided in Gibbons against Ogden, was, that the
acts of the Legislature of New York, granting to certain indi



[40]
viduals the exclusive navigation of all the waters within the
jurisdiction of that State, with boats moved by steam, for a
term of years are repugnant to that clause of the constitution
which authorizes Congress' to regulate commerce, so far as
the said acts prohibit vessels licensed according to the law of
the United States for carrying on the coasting trade, from
navigating said waters.
In expressing that opinion and the reasoning which led to
it, the Court do decide, that the power over commerce included
navigation; that it extended to the navigable waters of the
States; that it extended to navigation carried on by vessels
exclusively employed in transporting passengers, but the utmost of the opinion, alter all, is, that should the law of New
York, granting an exclusive right to the waters of that State
be upheld, and thus exclude a vessel licensed by the Government of the United States, to navigate the same waters, that
the two statutes would be in conflict, and that under such a
collision the State law would have to yield, and that therefore,
the law of New York was void..
This case falls far short of being direct authority for the unconstitutionality of our ferry laws, admitting every proposition to be true, as stated by the Court.
The facts of one are in striking contrast to those of the
other.
The ferry laws of Kentucky, operate on land wholly within
its terrtitorial limits, and over which the State professes an
acknowledged jurisdiction for all internal regulations; while in
Gibbons vs. Ogden, the laws of New York, pronounced unconstitutional, attempted to operate over a large extent of navigable water, over which the Court say the power to regulate
commerce extended.  In the case at bar, the subject on which
the Kentucky statutes operate, are persons whose rights and duties are rightfully prescribed and controlled within the territoTial limits in which they are formed; while in the case of Gib



[41]
bons against Ogden, the subject matter was a steam vessel
claiming the right of navigation in navigable waters. Under
such a state of facts, how can that case be relied on as authority
for overthrowing the ferry statutes of Kentucky?
But again: In the case of Gibbons vs. Ogden, 9 Wheaton,
203, Chief Justice Marshall says: "That inspection laws may
"have a remote and considerable influence on commerce, will
"not be denied, but that a power to regulate commerce is the' source from which the right to pass them is derived, cannot
"be admitted. The object of inspection laws is to improve the
"quality of articles produced by the labor of a Country: to
"fit them for exportation; or it may be, for domestic use.
"They act upon the subject before it becomes an article of for"eign commerce, or of commerce among the States, and pre"pare it for that purpose.  They form a portion of that im"mense mass of Legislation, which embraces every thing
" within the territory of a State, not surrendered to the Gen" eral Government; all of which, can be most advantageously
"exercised by the States themselves.  Inspection laws, quar" antine laws, health laws of every description, as well as laws
"for regulating the internal commerce of a State, and those which
"respect Turnpike Roads, Ferries, tc., are component parts."
This would seem to be decisive of the question. If any
thing else be wanting, I ask the attention of the Court to the
argument of Mr. Webster, in answer to that of Mr. Emmett,
in this identical case, where i-s conceded that the regulations
of ferries, especially on Lak: Champlain, are not within the
power of Congress, but are legitimate subjects of State regulation, as part of the internal police of the State.  I press upon
the attention of the counsel upon the other side, that Mr:
Emmett cites the ferries on Lake Champlain, (the boundary between two States.) which were conceded by Mr. Webster, (who
was opposed to him,) to be within the subject.matter of police
fgiulation  belonging to the States, and not to the General
6




[42]
Government.  In  further support of the proposition, that
these Statutes regulating ferries, are entirely subject matters
of police, and internal regulations never surrendered to the
General Government, but expressly reserved by the States,
I cite New York vs. Milne, 11 Peters, 156; Ogden vs Gibbons, 9 Wheaton, I License Cases, 5 Howard, 624; United
States vs, New Bedford Bridge, 1 Woodb. and Minot, 423,
Passenger Cases, 7 Howard, 524,
It is believed that no adjudicated case can be found, in
which the right of a State to control and regulate its ferries
has ever been questioned.  The fact that the river is the
boundary between two States can, from the very reasons on
which the power rests, make no difference.
I have endeavored to show that ferries are matters of police
regulation, and as Euch, are clearly within the exclusive control of the State Governments. Were these franchises, however, to be tortured into regulations of commerce, it would be
an internal one, and they would still, from their very nature,
be subjects of exclusive State jurisdiction.
To have doubted this proposition, seems to me, wonderful.
The License Cases, 5 Howard, 504-628, are full to this
point.  The language of Judge Woodbury is so pertinent and
apposite upon this express point, that I cannot resist copying
it.  He says:
" As a general rule, the power of a State over all matters not
" granted away must be as full in the bays, ports, and harbors
within her territory, inltra fauces errce, as on her wharves and
"shores, or interior soil. And there can be little check on such
"legislation, beyond the discretion of each State, if we con"sider the great conservative reserved powers of the States, in
"their quarantine or health systems, in the regulation of their
internal commerce, in their authority over taxation, and, in
"short, every local measure necessary to protect themselves
"against persons or things dangerous to their peace and their
" morals




[43]
"It is conceded that the States may exclude pestilenct,
"either to the body or mind, shut out the plague or cholera,
"and no less, obscene paintings, lottery tickets, and convicts.
"Holmes v. Jennison et al., 14 Peters, 568, 9 Wheaton, 203;
"11 Peters, 133.  How can they be sovereign within their
" respective spheres, without power to regulate all their internal
" commerce, as well as police, and direct how, when, and where
"it shall be conducted in articles intimately connected either
"with public morals, or public safety, or the public prosperity.
"See Vattel, B. 1, ch. 19, ~~ 219, 231."
" Nor is there, in my view, any power conferred on the Gen"eral Government which has a right to control this matter of
" internal commerce or police, while it is fairly exercised, so as
"to accomplish a legitimate object, and by means adapted le" gaily and suitably, to such end alone."
So again, he says"There may be some doubt whether the general govern" ment or each State possesses the prohibitory power as to per"sons or property of certain kinds from coming into the limits
"of the State.  But it must exist somewhere; and it seems
"to me rather a police power, belonging to the States, and to
"be exercised in the manner best suited to the tastes and in"stitutions of each, than one anywhere granted or proper to
"the duties of the General Government. Or, if vested in the
" latter at all, it is but concurrent."
So again:
"The States stand properly on their reserved rights, within
"their own powers and sovereignty, to judge of the expediency
and wisdom of their own laws; and while they take care not
"to violate clearly any portion of the constitution or statutes
"of the general government, our duty to that constitution and
"laws, and our respect for the State rights, must require us
"not to interfere."  5 Howard, S. C. 630-631.




[ 44 
If these views be correct, it clearly follows that every State
has not only an unquestioned right to prescribe the terms on
which ferry franchises are to be granted, but to attach thereto
any conditions or penalties which the safety or comfort of its
population may demand.
If the power be a reserved right of the State, it follows that
it cannot be exercised by the  Federal Government; and this
brings us to a consideration of the effects of the license issued
to the Commodore, as a vessel engaged in the carrying trade,
under the coasting act.
VII.  We do not propose to discuss the question whether a
ferry-boat, plying between Cincinnati and Newport, as such,
can properly  corn  within  the provisions of the coasting
act of the United States.  The question was raised beforeJudge Catron, on an information filed by the District Attorney of the United States, the late P. S. Loughborough, against
the steam ferry-boat plying over the Ohio river, between Portland, Kentucky, and New Albany, Ia. for failing to comply with
the requisitions of that act.  The owners of the ferry relied by
way of plea, on their grant of a ferry franchise from the State
of Kentucky, as exempting them  from the operations or requisition of that act. Their plea was demurred to, and after
full argument, overruled. Judge Catron deciding, that said act
did not include steam ferry-boats between sister States. This
decision was made in 1836.  The whole proceedings before
Judge Catron, are found in this record.
Reference is. only  made to it to show, that although the
lessee of this ferry, and one of the plaintiffs, chose to obtain
a license, and have his ferry-boats enrolled under the authority
of this case, it was wholly unnecessary for the purpose of keeping up his ferry. The decision of the venerable Judge Catron,
will also be a fair set off against the opinion of the late Secretary of the Treasury, (Corwin,) that ferry-boats on the Ohio
river were within the provisions of the act, and had to be licensed and enrolled.




[45 
The question to be considered is,-suppose they are within
the act, what authority does the license from the United States
Custom House, at Cincinnati, give them to establish a ferry upon Kentucky soil, without obtaining any license from  the
proper State authorities, in derogation of our statute law, and
in violation of private rights'?
What privilege does this license of Federal authority impart,
except to authorise the Commodore to navigate the river, as a
boat engaged in the carrying trade?  Admit that the transportation of persons and property, between Cincinnati and
Newport, as a common ferry-boat, is a legitimate exercise of
the carrying trade under this coasting act, under what pretense can it be claimed, that the owners of the Commodore
have the right, against the consent of the State of Kentucky,
to establish a ferry, and in direct violation of all her statutes in
regard to ferries? Under what shadow of claim, can the landing of James Taylor be appropriated without his consent, and
in direct destruction of his own ferry franchise?  If it be admitted by the other side, that no such landing can take place
except by the consent of the owner, and the lease from the
city of Newport is relied on as authorizing them to land on the
esplanade, the question then turns exclusively on the dedication of the common, and that being decided against the city of
Newport, this controversy is disposed of. Should it be admitted
however, that the city had the right to dispose of this landing,
it will hardly be contended, that she could impart a ferry franchise which had been denied her as a town and city, by the
competent authorities of Kentucky.  Is it contended that the
right to navigate the Ohio under this license, includes the
right to land as a ferry-boat, on Kentucky soil, in derogation
of her statutes?
If we. have been at all successfel in the views which we have.
attempted to advance, touching the exclusive jurisdiction of
the States over ferries within their own limits,.though said




[46]
rivers be boundariesibetwen the States, then this claim falls to
the ground. If, however, it be claimed that this license from
the Custom IIouse at Cincinnati, issued by the United States,
authorizes the Commodore, as a ferry-boat, to transport passengers and freight between Cincinnati and Newport, in direct
violation of the Kentucky statute, it must be under the power to regulate commerce, exclusively confined to the Federal
Government.
By this reasoning, the whole-control of ferries in the Commonwealth of Kentucky, becomes vested in the Federal Government, and under its exclusive control. The Commonwealth
could not have even a concurrent jurisdiction of ferries, since
in the regulation of commerce,, where Congress has acted, its
action is supreme; and it is claimned that the coasting act is
an exercise of such power.  Where, then, would be the guards
for the protection of our property? Should we look to Congress to protect us, or look to the passage of some criminal
law by the Commonwealth of Kentucky; and when the nonresident owners of the various coasting ferry boats, were indicted for an abduction of our slave property, trust to the Governors of the free States for their delivery? What would become
of the pilot laws, health laws, poor laws, inspection laws, quarantine laws, decided again and again to be constitutional? They
would undoubtedly all share the same fate of these ferry statutes of Kentucky.  The Commonwealth would be powerless
and impotent to protect herself from the mid-day attempts of
fanatic marauders, constantly to annoy her. These fearful results, the necessary but legitimate fruits of the construction of
this coasting license, as claimed on the other side, are thestrongest and clearest evidence of its utter absurdity.
It has, however, not been left to deduction.  The Supreme'
Court of the United States say: " That a license to prosecute
"the coasting trade is a warrant to traverse the waters washing
"or bounding the coasts of the United States.  Such a license




[47]
"conveys no privilege to use free of tolls, or of any condition
"whatsoever, the canals constructed by a State or the water"courses partaking of the character of canals exclusively
"within the interior of a State, and made practicable for navi"gation, by the funds of the State, or by privileges she may
"have conferred for the accomplishment of the same end. The
"attempt to use a coasting license for a purpose like this, is, in
"the first place, a departure from the obvious meaning of the
" document itself, and an abuse wholly beyond the object and
" the power of the Government in granting it."  Veazie, et al.
vs. Moor, 14 Howard, S. C., 575.
The truth is, the grant of ferry privileges to owners of the
land, is not a regulation of commerce, nor an obstruction of it.
If James Taylor were the owner of the whole Ohio river front
for miles, commerce would only be affected consequentially
and contingently by it. He would have a right to collect his
tolls, and the Federal Government itself would be compelled
to pay them, as the Government does in the use of our turnpikes, railroads, and canals.  Nor is the passage of our ferry
statutes an exercise by the Commonwealth of a. commercial
power. Their adoption may and probably does greatly affect
commerce.  The State can not regulate foreign commerce, but
it may tax the ship or vessel, by which this commerce is carried on. The State can not convey or regulate the mails, but
yet may tax the coaches in which the mail is conveyed. 7
Howard, 402.  Yet, in both instances, the tax greatly affects
it. So, too, in giving the commercial power to Congress, or
entering into a compact for the free navigation of the Ohio
river, the Commonwealth of Kentucky never intended to surrender, and never did part with that power of self-preservation,
whose exercise may affect commerce, but which is retained as
inherent in every organized community.
Nothing is more common than private wharves in the great
cities of this confederacy. The defendants themselves, or some




L  8]
of them, are the owners of a private wharf in the heart of
Cincinnati, from which the Commodore runs.  None of the disastrous and mildew effects from  private wharves, which have
been portrayed upon the prospects of Newport, in consequence of the ownership of the wharf and ferry by Taylor, seem
to exist in Cincinnati.  The defendants seem to forget that, notwithstanding the decision of this Court both in 1831 and 1852,
upon General Taylor's reserved rights to said common and said
ferry, that the city of Newport has quadrupled her population,
and that it is still rapidly increasing.
In every point suggested, the law is clearly for the plaintiffs.  We ask upon our cross errors, that the title to the
wharf be quieted, and that as to the other part of the decree,
it be affirmed.
JOHN W. STEVENSON




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