delivered the opinion oe the court:
Neithei’ the statements made by appellee in the written application by him to the Hickman county court for the establishment of Kentucky City, nor any grants or covenants in his deed to the Mobile and Ohio Railroad Company, had the effect to divest or deprive him, as owner and proprietor, of wharfage privileges.
He certainly did not, by express grant, divest himself of those privileges; and upon the map of the town, which was made and exhibited to those, doubtless, who purchased lots, these privileges are expressly reserved, and no one who would examine said map could be deceived as to the rights and privileges retained by appellee.
But, notwithstanding the right was .reserved by appellee, it does not appear that he had built wharves, improved the shore, or had made any preparations for the reception or delivery of goods, or the accommodation of vessels. And, therefore, it does not appear that he was entitled to the tolls and wharfage collected by appellant from steamboats or other vessels landing at the shore, or at wharf-boats attached to the banks. He is legally entitled to a fair remuneration for the use and occupation of the. banks, if they were converted into wharves by the appellant, and used by it for that purpose; and cannot extend his recovery beyond five years before the institution of his action. If the city is to be regarded as holding the banks of thp river, &c., in trust for appellee, it is nothing more than an implied trust, and the statute would apply, and it is relied upon in the amended answer. The case should be referred to the master to ascertain by proof and report to the court by whom the wharves were built, and the shores were improved and prepared for the reception and delivery of goods, &c., and the landing of vessels; and either party should be *478permitted to amend the pleading, if an offer should be made to do so.
Wherefore, the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.