
    The City of Logansport v. Dunn and Wife.
    ^1® ^aUnS ou*' 05^ al1 a^iti°n to a city by tlie owner of adjacent lands. the recording of a plat thereof; and the sale of lots with reference to such plat, operate as a dedication to public use, of all streets, alleys, and other grounds, clearly designed to be so appropriated.
    The designation upon such plat, of a lot or space, as a site for a church, seminary, market, or common, operates as a dedication of -the same-to the public, for such purpose.
    The words, “public square,” have, in this State, acquired a definite legal meaning; and when written or printed in a proper place on the plat of a town designed for a county seat, the place so designated is set apart as the site of the court-house, and other county buildings.
    The owner of lands may lay them off in town lots and publish a map thereof, without being concluded to any extent; but so soon as he sells lots with reference to such map, other rights intervene, and the dedi-* cation of all grounds designated upon such map for public use, then becomes effectual.
    A single declaration, made by the owner of land, that he intends to dedicate any portion of it to public use, unconnected with some act in furtherance of that intention, will not amount to a dedication; much less will such declaration amount to a dedication when accompanied, or immediately followed, by an act wholly inconsistent therewith.
    If a single act of the owner of land be relied on to establish a dedication of the same to the use of the public, its character must be so unequivocal as to require neither lapse of time nor user by the public, to aid the presumption of dedication, arising from such act.
    The facts that an administrator makes and records a town plat of lands belonging to his decedent, designating thereon a given square, as “ Spencer Squareand that he subsequently sells lots by such plat, do not of themselves operate as a dedication of that square to the public.
    Mere public reputation for any length of time will not, unless connected with some act of the owner of lands, evincing his intention to dedicate the same, or with the use, control, or occupancy of, the same by the public, operate as a dedication.
    Adverse possession is never proved by mere reputation.
    Where the evidence is conflicting, an appellate court will not disturb the verdict of a jury.
    The giving of an erroneous charge where there was no evidence on which to predicate it, and where the verdict is right upon the evidence before the jury, cannot avail either party on appeal as error.
    APPEAL from the Cass Circuit Court.
    
      
       3) Counsel for the appellant cited authorities to the following points:
      1. The making and publishing of the engraved town plat by John Ti/pton, and designating uSpencer Square” upon it; his express declaration to the witness, Bartlett, “that he intended that piece of ground to be a public square, not to be built upon;” and the sale of lots with reference to the same, as a public square, is an irrevocable dedication.
      Indeed, we must insist that either of these acts taken separately, after individuals or the public have acted on the faith of their representations, would amount to a dedication which Tipton could not afterwards revoke. The record does not show that lots were sold east of Ninth street, with reference to the engraved plat; but shows that they were so sold west of Ninth street; but the selling of lots in any part of the town with reference to that plat, has tkeJsame effect as though they were situated east of Ninth street. After the dedication has once been thus made, neither Tipton, nor his heirs, nor his administrators, can revoke it; so that all the proof of acts or intentions subsequent to this period, cannot affect this proposition. Wyman v. The Mayor, &c. 11 Wend. 487. — Twenty-ninth street, N. Y, 1 Hill, 189. — Hunters. The Trustees, 6 Hill, 407. — Broom v. Manning, et al., 6 Ohio R. 298. — Lebanon v. Warren Co.. 9 id. 80. — Huber v. Gazely, 18 id. 18. — Rowan’s Ex. v. Portland, 8 B. Monr. 232.- Campbell Co. v. Newport, 12 id. 538. — Godfrey v. Alton, 12 Ill. R. 30. — Hobbs v. Lowell, 19 Pick. 405. — Barclay et al. v. Howell’s Lessees, 6 Pet. 498.— Cincinnati v. White, id. 431. — New Orleans v. The United States, 10 id. 662.
      A town plat need not be recorded to be evidence of dedication. Wright’s Ohio E. 749. A dedication may be made by parol. Dover v. Fox, 9 B. Monr. 200. Or a party who expressly, or by his acts, has waived his title to property, will be estopped from asserting it against a party who has invested money on the faith of such waiver. Laney v. Laney, 4 Ind. R. 149. Admissions which have been acted upon by others are conclusive against the party making them. See Gray v. Allen, 14 Ohio R. 58, where the doctrine of estoppel is fully discussed; also, Frost v. The Insurance Company, 5 Denio, 154.
      2. The town plat laid out and acknowledged by the administrators of John Tipton, as charged and admitted in the pleadings, operates as a conveyance to the public.
      This power is founded on an act for recording town plats, E. S. 1838, p. 595, which was in force at the time this plat was so made and recorded. The whole appearance of the plat, and the words, “ Spences- Square,” import that it is a dedication to public use. This construction is fully ■sustained in Le Clerq v. Gallipolis, 7 Ohio R. 218, and affirmed in Loughy v. Gallipolis, 22 id. 106.
    
    
      
       Counsel for the appellee cited the following authorities:
      A dedication is the deliberate appropriation of lands by the owner for any general and public use, and must be made perfect by its acceptance and use by the public. Pearsall v. Post, 20 Wend. 111, 22 Wend. 425. It is not complete without evidence of acceptance by the public. 2 Greenl.. Ev. s. 662. — Willoughby v. Jenks, 20 Wend. 96.- — 3 Kent, 8th ed. 564.— The State v. Carver, 5 Strobh. 217. — Simons v. Cornell, 1 R. I. 519.— Westfall v. Hunt, ante, 174. It must be established either by user or length of time, or by an act of the owner so unequivocal in its nature as to require no time to warrant a presumption of a grant. Livingston v. The Mayor, 8 Wend. 85. — 11 East, 376, — 1 Burr. 133. A grant may 'be by deed, or by the acts of the owner. 2 Bouv. Inst. 185. It must be made by the owner in fee. 2 Greenl. Ev. s. 663. — Wood v. Veal, 5 Barn, and Ald. 454. The party asserting it must allege its true character and extent, the conditions and limitations imposed, and recover, if at all, according to such allegations. 3 Kent, 563, b. — Lithbridge v. Winter, 1 Camp. 263, note. — Marquis of Stafford v. Coyney, 7 B. and C. 257. — Gowen v. Phil. Ex. Co. 5 Watts and Serg. 141. — Poole v. Huskinson, 11 Mees, and Welsb. 827.
      The claim of the city, so far as it is depends upon user, is in the nature of an easement in, or servitude imposed upon, the land in question by the public; and such , easement or servitude must have been of 20 years duration. To render the enjoyment of any easement for 20 years a presumption juris etjure, or conclusive evidence of right, it must have been continued, uninterrupted or pacific, and adverse — that is, under a claim of right, with the implied acquiescence of the owner. 2 Greenl. Ev. ss. 538, 539. — Pearsall v. Post, 20 Wend. 111 and authorities there cited. — 3 Kent, 552.— Corning v. Gould, 16 Wend. 531.— Colvin v. Burnet, 17 Wend. 564. — Sargent v. Ballard, 9 Pick. 251, 255. — Shumway v. Simons, 1 Verm. R. 53, 57. — Mitchell v. Walker, 2 Aiken, 266 to 271„ This case is very different from those cases where terms are used importing the purpose of the donor — as in Beatty v. Kurtz, 2 Pet. 566, where the lot was designated on the plat by the words “Eor the Lutheran Churehff or in McLaughlin v. Stevens, 18 Ohio R. 94, where the ground in dispute had been leased and used for wharves. And so in New Orleans v. The United States; Le Clerq v. Gallipolis; Huber v. Gazley, &c., cited in the appellant’s brief.
    
   Gookins, J.

This record presents the question of the dedication of a public square.

The city of Logansport is situated at the confluence of the Wabash and Lei rivers, on a point of land between the two streams. The town originally extended from the'junction of the rivers, eastward to fifth street, and was laid out by one Chauncey Carter. In 1835, G-eneral John Tipton laid out an addition to the town, extending eastwardly from fifth to ninth street, a plat of which was duly recorded. In 1838, he .caused to be published a lithographic map of Logansport, and its surroundings, which embraced the original town and the addition above mentioned, and represented the town as extended still further east. A marginal reference in the map stated that the ground between fifth and ninth streets was laid off by General Tipton, in 1835 and 1836, and that the ground east of ninth street was laid out by S. S. Tipton and James Dunn, in reference to which the proof was that General Tipton sold this ground to 8. 8. Tipton and Dunn, by a verbal contract, but that afterwards the contract was cancelled. In the latter extension, a block is represented on the map as “ Spencer Square,” which is the ground in dispute. No plat of this extension was recorded in the lifetime of General Tipton. After his death, which occurred April, 5,1839, his administrators, finding a deficiency of personal assets to pay the debts of the estate, made and recorded a plat of the ground covered by the last enlargement, but not in accordance with the lithographic map; the position of Spencer Square, however, was the same in both, and was designated in like manner on the plat made by the administrators. Under an order of the Probate Court, they sold at public auction, in 1840, the lots in this enlargement, for the purpose of raising money to pay debts, and the sales were confirmed. In July, 1852, a voluntary partition was made between the heirs of General Tipton, who mutually conveyed to each other, in which partition Spencer Square was assigned to Mrs. Lunn, a daughter of General Tipton, and wife of Thomas S. Lunn, who are made defendants. Immediately after this partition, the defendants caused Spencer Square to be enclosed by a fence, claiming it as, their own. In March, 1853, the city of Logansport commenced this suit against Dunn wife, by bill in chancery, to establish their claim to Spencer Square as public ground, alleging that it had been dedicated to the public use. The answer ■was filed under the present code. Issues were formed, which were tried by jury, who found a special and general verdict for the defendants, on which there was judgment, from which the city appeals.

Among other evidence given at the trial, it was proved that Spencer Square was so named and called by General Tipton, in his lifetime, in honor of his father-in-law, Captain Sp>encer, who fell at the battle of Tippecanoe; that in 1838, he caused his wife to be buried there, stating at the time that he intended to erect a family vault upon it, and to remove the remains of his -wife to the vault; and, at the same time, stated that it was to be public ground, and that no houses were to be built upon it. A military cadet, nephew of General Tipton’s wife, was also buried there, and a marble monument was erected to his memory, by his classmates, upon the square; but whether before or after General Tipton’s death, is left in some doubt. General Tipion, at his death, was buried there, and subsequently his son’s wife and two .children. The graves were enclosed, but the remainder of the square was, left open, and was occasionally used, as were other grounds similarly situated, once for a militaiy parade, and at other times for Fourth of July celebrations, being covered with trees, and furnishing an agreeable shade, rendering it suitable for such occasions. Other adjacent grounds belonging to the estate were in the same condition. S. S• Tipton, one of the heirs, was proved to have said, upon one occasion, that Spencer Square was to be public ground. He was the only adult at the time of the sale by the administrators — the other heirs being of various ages, and one was not, of age when the partition was made in July, 185.2,'

On the question of intention, much evidence was given on both sides. On the part of the plaintiffs several witnesses, who had been for many years residents of Logansport, testified that Spencer Square had, from about the time of the publication of the map, been generally known and reputed to be public ground; but they could not say that they had heard it so called in presence of General Tipton, or the heirs, or administrators; that at the time of the public sale of lots by the administrators, it was so generally understood by the bidders, and others present, and one witness thought it had been so proclaimed by the auctioneer; that at that sale, lots were purchased fronting on the square, the purchasers understanding that it was to be public ground. Some of the witnesses who had purchased lots at that sale, testified that they had contributed towards the expenses of this suit. The auditor testified that, until recently, Spencer Square had not been assessed for taxation; but that property subject to tax was frequently omitted in the assessment. On the other hand, there was testimony that General Tipton had, until his death, claimed and exercised acts of ownership over the ground; that ho had once prosecuted a person for taking sand from it. Others who were at the administrator’s sale heard nothing of Spencer Square being considered public ground, and testified that it was not so proclaimed. The administrators testified that they had not dedicated the ground to the public use, nor authorized the auctioneer so to proclaim it; and several old citizens of the town had never heard that Spencer Square was considered public ground, but had always understood it to be private property.

It is settled law that the laying out and recording of a plat, and the selling of lots with reference to it, operate as a dedication to the public of streets, alleys, and other grounds clearly designed to be appropriated to the public use. Indianapolis v. Croas, 7 Ind. R. 9.— Haynes v. Thomas, id. 38. A designation on the map of a lot or space for a church, seminary, market, or common, will also have the effect of a dedication for tlie use indicated. In this State, the words “public square” have acquired a legal moaning by u.se, and are evidence, when used in a proper place, on the map of a town designed for a county seat, that the ground is set apart as a place for the erection of a court-house or other county buildings. Westfall v. Hunt, at the present term . Whether by inserting the words, “ Spencer Square,” on an open space on the map of the town, the proprietor intended to dedicate the ground to the public use, was a question of fact to be found by the jury. The evidence on this point was conflicting, and was obviously of such a character that an appellate court would not be authorized to disturb their verdict, whichever way it might have been. We are, therefore, only left to inquire whether they were rightly instructed, and what was the legal effect of their special verdict.

The following facts were specially found by the jury: I. That General Tipton did not, in his lifetime, lay out into lots that part of Logansport indicated by the lithographic map, 2. That he did cause said map to be engraved and published. 3. That he designated thereon the place called Spencer Square. 4. That the administrators made and recorded a plat of the addition. 5. That Spencer Square was delineated thereon. 6. That they sold lots as laid out and designated in said addition, which sales were confirmed. T. That it was not gener rally understood by the purchasers of lots at the admintrators’ sale that Spencer Square was a public square. 8. That it was not known, reputed, and generally understood by the purchasers of said lots, the inhabitants of Logansport, and the public generally, that Spencer Square was public ground. 9. That since it had been known as Spencer Square, it had been generally understood and reputed to be private property. 10. That since the sale of the lots by the administrators, they and the heirs of Tipton, had had control of Spencer Square. II. That it had not been used as public ground. 12. That General Tipton, and a part of his family, were buried there. 13. That it was his intention that Spencer Square should he a private burial ground. 14. That he exercised-sole control over it until.Ms death. 15. And Ms death, his administrators and heirs. 16. The same in substance as the 8th. 17 and 18. Immaterial. 19. General Tipton did not declare in his lifetime that Spencer Square was to be public ground. 20. Immaterial (a question of law, not of fact). 21. The administrators did not intend, by making the plat, to dedicate Spencer Square to the public.

The foregoing, with a general verdict for the defendants constitute the finding of the jury.

'Upon the prayer of the defendants, various instructions were given to the jury, some of which may be conveniently considered together. They were instructed as follows:

“ Where the intent to lay out a town is formed, but abandoned, and the plat is not recorded, a sale of a part of the premises does not give the purchasers the right of streets, alleys, or squares, designated on such unrecorded plat.

“ More evidence is requisite to establish a dedication of a square to the public, than .the simple making and circulation of a map.”

This instruction we think correct. The publishing of a map by the owner, of ground proposed to be made the site of a town, does not conclude him to any extent.

It is only when lots are sold with reference to such plat that other rights intervene. When that occurs, the dedication becomes effectual as to those grounds which are devoted to the public use.

The jury were further instructed that the admission of General Tipton to the witness Isaac Bartlett, on the occasion of the burial of said Tipton’s wife, that he intended to have Ms family buried on that square, and to erect a family vault there, and that said square should be public, ground, was not sufficient of itself, if they believed such admission proved, to establish a dedication of said ground to the public.

A single declaration made on one occasion to one perSOn of an intention to devote a piece of ground to the public use, unconnected with any act in furtherance of ^ie °bject> would certainly not amount to a dedication, especially when the declaration was accompanied by an act apparently inconsistent with ■ the purpose declared. If a single act be relied upon to establish a dedication, it must be of such an unequivocal character, as that lapse of time or user would not be required to aid the presumption of dedication.

These instructions contemplate the action of General Tipton, with reference to the fact of dedication. In regard to the action of the administrators, the following instruction was given at the instance of the defendants: “The mere act of making and recording the plat marked exhibit B. with Spencer Square designated thereon, and selling lots by said plat, does not of itself and without other concurring circumstances operate as a dedication of the square to the public.”

"We will not stop to inquire whether the administrators had any power to make the dedication. The general principle certainly is, that it can be done only by the owner of the fee. 2 Greenl. Ev. s. 663. Ve think the instruction correct on another ground. The words “ Spencer Square,” did not, unexplained, import that the ground was to be public. They are not like street, common, market place, public square, seminary lot, &c., which of themselves, when marked upon an open square or space upon the map of a town, import that the ground is set apart to a public use.

Upon the question of lapse of time and user, the following instructions were given at the instance of the defendants:

“Public repute, if general and uncontradicted for a period of fourteen years, that this square was a public one, would not of itself divest the original proprietor of his control, or operate as a dedication.

“ To found a title to this property on mere user, the public must have been in possession twenty years.”

In regard to the first of these, it is sufficient to say that mere public repute for any length of time, unconnectecl with any act on the part of the owner, evincing an intention to dedicate, or any occupancy, use, or control by the public, would not operate as a dedication. Adverse possession is never proved by mere reputation.

PC. P. Biddle and B. W. Peters, for the appellant .

L. D. Pratt and S. C. Taber, for the appellees .

"We need not inquire whether the principle asserted in the other instruction is correct in kw or not. If it were erroneous, the judgment would not be reversed, for the reason that there was no evidence which could have justified the jury in finding an user by the public. The most that is proved is, that on one. occasion there was a military parade upon Sp'encer Square, and that, like other grounds lying open about Logansport, had been occasionally used for public celebrations on the Fourth of July. The practice of our people to repair to some convenient woodland to celebrate that day is almost universal. The custom is as well known as other matters of public history. In the vicinity of most towns there are favorite resorts which are used for such occasions; and it would probably be difficult to find a citizen who would refuse the use of unenclosed grounds for such an occasion.' This is no such appropriation by the public as would authorize a jury to find an user. The city of Logansport is not shown to have, exercised the slightest control or authority over Spencer Square, for any purpose whatever. Besides this the' 10th, 11th, 14th, and 15th specifications of the special verdict are wholly inconsistent with the user supposed. The 11th in particular declares that the square had not been used as public ground.

Several instructions were given by the Court of its own motion, they were mostly favorable to the plaintiff,, and none of them, we think, asserting principles of law of which the plaintiff can complain, moreover, they were not excepted to, and cannot be successfully relied on in error.

Per Curiam.

The judgment is affirmed with costs . 
      
      
        Ante, 174.
     
      
       Stdart, J. was absent.
     