
    *The Board of Education of the Incorporated Village of Van Wert v. The Inhabitants of said Town, and C. P. Edson and P. DePuy.
    l'lie incorporated village of Tan Wert was laid out in 1835, and the proprietors, by plat duly acknowledged and recorded, dedicated two specified lots therein “for school purposes, and on which to erect school-houses.” By reason of the subsequent construction and continued operation of a railroad, and the location of a depot in connection therewith, in close proximity to these lots, they were rendered unsuitable to be used as sites for school-houses, and their use for that purpose became dangerous. A petition was filed by the board of education of the incorporated village, praying, for the reason aforesaid, that the court of common pleas might order the lots to be sold, and the proceeds of sale to be applied to the purchase of suitable school-house sites, or to the erection of school-houses on suitable grounds to be procured by the board. Upon demurrer to the petition: Held—
    1. That the dedication was for a specific use, and conferred no power of alienation so as to extinguish the use.
    2. That if the use created by the dedication were abandoned, or should become impossible of execution, the premises would revert to the dedicators or their representatives, and that, without their consent, they could not be divested of their contingent right of reversion by an absolute alienation.
    3. The principle upon which a trust may, under certain circumstances be, executed cypres is not applicable to such a case.
    Appeal. Beserved in the district court of Tan Wert county.
    The case is sufficiently stated in the opinion of the court.
    
      R. C. Spears, for Edson and DePuy, demurrants:
    The demurrer of the defendants must be sustained.
    1. The lots having been donated for a specific purpose, can be used for no other. S. & C. 1484, sec. 8, and note.
    2. The dedication was therefore conditional. Ib.
    3. The fee remains in the maker of the dedication. 14 U. S. Dig. 152; 6 Hill, 407.
    4. The lots, having been abandoned for school' purposes, revert to the proprietors. 12 U. S. Dig. 168, sec. 17; Hunter v. Sandy Hill, 6 Hill, —; Sinclair v. Comstock, 1 Harring. Eq. 404; 1 U. S. Eq. Dig. 306.
    5. Land dedicated for a particular purpose can not be sold or aliened. City of Alton v. The Transportation Co., 12 Ill. 38; 12 U. S. Dig. 168, sec. 12; S. & C. 1484, sec. 8.
    222] 6. As regards lot No. 3, no control has been exercised *over it, in behalf of the town or board of education, for over twenty-one years. Their right is barred by the statute of limitations. Cincinnati v. First Presbyterian Church, 8 Ohio, 298.
    7. Circumstances having rendered the use of the lots in question for the purposes of schools impossible, the lots revert to the original proprietors and their grantees, because the intentions of the donors have been defeated. Le Clercq v. Gallipolis, 7 Ohio, 217, 221; Williams v. The First Presbyterian Church, 1 Ohio St. 478.
    As to the doctrine of dedication generally, see Pearsall v. Post, 20 Wend. 111.
    
      A. G. Thurman, for plaintiffs:
    The only ground of defense stated is, that, upon the facts stated, the lots have reverted to the dedicators, their heirs, or assigns.
    This ground of defense is, it seems to me, quite untenable. If it were admitted that the lots were dedicated for school-house sites, and nothing more, yet they have not reverted; because, although their use as such sites is, for the present, interrupted by the railroad, it does not follow that it will always bo thus interrupted. The court can not presume that the railroad will forever exist, much less that it will forever exist upon its present location. The court can not, therefore, say that the use has become forever impossible. But unless it can say so, there is no ground for the argument that the lots have reverted. This is conclusively shown by Williams v. First Presbyterian Church, 1 Ohio St. 496; Barclay v. Howell’s Lessee, 6 Pet. 507.
    But it may bo asked: “If the use has not been forever destroyed, what right have the plaintiffs to ask for a sale of the lots?” I reply: 1. Because the dedication, properly construed, authorizes it; 2. Because the statute authorizes it.
    1. Of the dedication. — It was not for school-house sites merely, but mainly “for school purposes.” The intent of the dedicators was to provide for public schools. For this purpose they gave the property. Any designation of the lots as school-house lots was subor223] dinate to this. It may, then, be admitted, *for the sake of the argument, that the dedication created a trust; that the village took the title to the property as a trustee, and that the plaintiffs, who now hold the title, hold it as trustees; yet, when the trust can not be, in its details, strictly executed, according to the grant, a court of equity will not destroy the trust or declare it a nullity, and give the property back to the dedicators, their heirs, or assigns ; but will look to the main purpose of the grant, which in this case is the support of public schools, and cause the trust to be executed cy pres. 1 Story’s Eq., sec. 291. And hence the plaintiffs come into court. The proper mode to execute this trust cy pres is to sell the property in question and apply the proceeds to the purchase of suitable school-house sites, or to the erection of school buildings on sites already owned by the plaintiffs.
    2. Of the statute. — The title to the lots is plainly in the plaintiffs. See section 3 of the act of March 13, 1850, S. & C. 1377. And by this section they are authorized to sell them, with the consent of a majority of the electors of the school-district. But it was proper to ask a decree, so as to remove all clouds upon the title that might otherwise prevent a sale or diminish the price.
    I deny the right of the defendants, Edson and DoPuy, the demurrants, to set up the foregoing defense. They are properly made defendants to the petition, because it is averred that they set up some claims to the lots, of the nature of which the plaintiffs are not advised, and they are required to disclose their claim of title. Instead of doing this, they demur. It does not, therefore, appear that they are in privity with the dedicators But without showing such privity they have no right to allege that the property has reverted. What is it to them whether it has reverted or not, if the reverter is not in them 9
    
   Scott, J.

This cause originated in the court of common pleas of Yan Wert county, in which the plaintiff, by petition filed February 12, 1866, alleges in substance :

That the original proprietors of the village of Yan Wert, by a town plat duly acknowledged and recorded in May, 1835, dedicated *two'town lots, numbered 3 and 18 on said plat, for school [224 purposes, and on which to erect school-houses.”

That the proper authorities, shortly afterward, erected a schoolhouse on one of said lots, and occupied the same, in conformity with the purposes of said dedication, till the year 1855, the limited population prior to that time not requiring a similar occupancy of the other lot; that the only means of access to said lots is from Jackson street; and that in 1855 the said street was occupied by a railroad company as a part of the line of its railway; and that said company constructed a depot in close proximity to said lots, and thereby rendered, them worthless as sites for school buildings, as the noise and danger incident to the running of trains rendered their use for such purpose inconvenient and dangerous.

That the increase of population and the wants of the village had, by this time, rendered it necessary to erect additional school buildings, and to procure other and different sites therefor, as said lots had been rendered unsuitable for the purpose by reason of the location and use of said road and depot; "and that such other sites have been accordingly purchased, and buildings erected thereon.

That to meet the growing wants of the village it has bécome necessary to procure still further grounds for sites, and erect additional school buildings thereon ; and, under the circumstances, the plaintiff asks for authority to sell said lots (3 and 18), and apply the proceeds of sale to the purchase of sites for additional school buildings, or for the erection of such buildings.

Edson and DePuy are made parties defendant, on the ground that they claim a title to the premises adverse to the plaintiff, which they are called on to disclose.

Edson and DePuy' demurred to the petition on the general ground that it does not state facts sufficient to constitute a cause of action.

The inhabitants of the village of Yan Wert are made parties defendant in the title of the case, but neither the incorporated village of Yan Wert nor its inhabitants have answered or demurred ; nor do we find that they, or either of them, have been brought into court by service of process or otherwise.

225] *The court of common pleas sustained the demurrer and dismissed the petition; the plaintiff appealed to the district court, in which the case was reserved for the decision of this court.

It is claimed, for the plaintiff, that the title to the lots in question is vested in the plaintiff by section 3 of the act of March 13, 1850. S. & C. 1377. That section is as follows: “ The title to all real estate and other property, belonging, for school purposes, to any city, town, village, township, or district, or to any part of the same, which is or maybe organized into a single school-district, in accordance with this act, or the act to which this is an amendment, shall be regarded in law as vested in the board of education thereof, for the support and use of the public schools therein; and said board may dispose of, sell, and convey said real estate, or any part of the same, by deed, to be executed by the president of said board, upon a majority vote for such sale, at any regular meeting of the electors of said district.”

It does not appear that the village of Yan Wert is organized into a single school-district, under the acts referred to, nor does the petition state that a sale has been voted for at a regular meeting of the electors of such district. And if such organization and vote be assumed, and the beneficial ownership of the lots by the village be regarded as absolute and unqualified, we do not see that, as against the village, the plaintiff needs any further power than is conferred by this section of the statute; and we know no authority vested in the courts of the state to grant further power, if the legislative grant be insufficient.

But, we think it clear that this statute was intended to apply only to cases where the absolute ownership of the property is in the city, town, etc., which has been organized into a single school-district, under the act of February 21, 1849, and that it was not intended to affect any interest of the original proprietors of towns growing out of their dedication of particular lots or lands, for specific uses. The legislature could not thus transfer private rights of property, nor change the character of the use created by such, previous dedications. Le Clereq v. Town of G-allipolis, 7 Ohio (pt. 1), 217.

*By the' 8th section of the act of March 3, 1831, to pro- [226 vide for the recording of town plats (S. & C. 1484), it is provided: “ That the the plat or map, when recorded as required by this act, shall be deemed and considered in law a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, named, or intended for public use, in the county in which the town is situated, for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever.”

The town plat, in this case, was executed and recorded in 1835, and the result was that the fee simple of the lots in question was thereupon vested in the county of Yan Wert, but wholly in trust, for the public use specified in the dedication, and for no other use or purpose whatever.

If subsequent legislation has changed the trustee the trust or use itself remains unchanged. The dedication in this ease, as stated in the petition, was “for school purposes, and on which to erect school-houses.” Without determining whether, under this dedication, the lots could properly bo used for school purposes, other than the erection of school-houses thereon, it is enough to say that the dedication is of the land and not of its value or proceeds. It confers no power of alienation discharged of the use by which the purpose of the dedication might be utterly defeated. Should the sole uses to which the property has been dedicated become impossible of execution, the property would revert to the dedicators or their representatives. Williams v. The First Presbyterian Society of Cincinnati, 1 Ohio St. 478 (per Thurman, J.); Le Clercq et al. v. The Town of Gallipolis, supra (per Lane, J.)

Is it competent for a court of equity, without the consent of the dedicators, to extinguish forever this right of reversion, by ordering a sale of the property, and assuming to execute the trust cy pres, by transferring it to the proceeds of the sale? We think judicial power can not legitimately be so far extended.

Even if this could be done, the dedicators should certainly be made parties to the proceeding; otherwise, their rights would be unaffected by any order of the court in the premises. The only de227] fendants served with process in this case are *Edson and DePuy, and it is not alleged in the petition that they are the assignees of the dedicators, or in any way claim under or represent them. Still, as the prayer of the petition is only for an order directing the sale of the lots, and the application of the fund arising therefrom, and as no specific relief is asked as against Edson and DePuy, it is, perhaps, to be inferred that the title alleged to have been set up by them is not adverse to, or inconsistent with, the right of the plaintiff to use the property pursuant to the declared purposes of the dedication; but it is adverse only to the right which the plaintiff claims to discharge the property from the specific public uses contemplated by the dedicators, and to convert it into private property by an absolute alienation. At least, there is nothing in the petition to negative the idea that Edson and DePuy claim under the dedicators; and we think their general right, as defendants, to demur to the petition can not bo limited by the mere assumption that they are strangers to the dedication. And, for the reasons already indicated, wo think their demurrer must be sustained, and the petition of plaintiff be dismissed.

Judgment accordingly.

Day, C. J., and Brinkerhoff, Welch, and White, JJ., concurred.  