
    William Satchell v. Thomas Doram.
    No statute has authorized the recording of town-plats not executed and acknowledged pursuant to statute, and, consequently, such record is not, per se, evidence. Nor is it made evidence by proof that, in building or improving, some lot-owners paid respect to the plat, and others not.
    *An averment in a declaration that the plaintiff was entitled to the use of a “ public alley,” is not supported by proof of a right to use a private alley,
    A deed calling for an alley at seventy feet, more or less, from a street, does not estop the grantee to deny the existence of an alley at the distance of sixty feet.
    "Whether a court errs, or not, in a charge to a jury, is immaterial, where there is no evidence tending to make the charge material and it could not have misled the jury.
    Error to the district court of Hamilton county.
    The judgment sought to be reversed in this proceeding is that of the district court, affirming a judgment of the court of common pleas of Hamilton county, in an action on the case, in which the plaintiff in error was also plaintiff, and the defendant in error was defendant.
    The declaration averred, that “whereas, on the 10th day of January, in the year 1845, and during,” etc., Satchell “was lawfully possessed of a certain dwelling-house and appurtenances, situate on the south side of Green street, between Race and Elm streets, in the city of Cincinnati,” etc., and “was lawfully entitled to the use and enjoyment of a certain public alley, extending from said Green street, of the width of seven feet, by the side of his said dwelling-house, the whole length, of the said William Satchell, situate as aforesaidand alleges the obstruction of the alley by the defendant. The defendant plead not guilty, and also that the plaintiff ought not to have his action, because, he says “ that, by reason of the plaintiff’s possession of the lot in the declaration mentioned, at the time therein stated, the plaintiff was not entitled to the use and enjoyment of the said supposed alley, as in the declaration set forth; and this he prays may be inquired of by the country,” etc.
    It appears from the bill of exceptions, that the plaintiff introduced evidence tending to prove that, in 1838, Doram had a stable on the back end of his lot; that, then, in a conversation with one Beckley, Doram said he had been informed by Gest, city %urveyor, that there was an alley laid off, in connection with the alley “ across on the other side of the street, and parallel with it,” and that he (Doram) did not want to move his stable farther east than it then was, because, if he did so, the street commissioners would fine him severely for doing so, and that he had sixty feet, more or less, from Mr. Longworth.
    Evidence was further introduced tending to prove, that, at the commencement of the suit, and at the time stated in the declaration, Doram was in possession of a lot, and house thereon situate, on the southeast corner of Green and Elm streets, in McFarland’s subdivision of said city; that he (Doram) obtained that property about thirty years ago, by assignment of Nicholas Longworth’s title-bond to one Hurry; that afterward (December 19, 1835) Doram obtained from Longworth a deed in fee simple; that the plaintiff is in possession of the lot, with his dwelling-house thereon, next east on Green street — street of Doram’s lot — and that Doram told said Beckley that Mr. Gest, the city surveyor, had told him there was an alley there.
    Plaintiff further introduced evidence tending to prove that, about 1807 or 1808, William McFarland had possession of that part of said city known as McFarland’s subdivision; that he subdivided the same into lots, so that in said subdivision there were-alleys seven feet wide, the first at the distance of sixty feet east, from Elm street, and then of distances of every sixty feet on both sides of Green street to Race street; that the lots are thirty feet in width; that about August 17, 1831, Charles Satchell was about to purchase the right of one Joseph Parker, which he held by title-bond from Longworth, and that Doram, as the agent of Parker, held his papers and negotiated the contract with said Charles Satchell; that, in such negotiation, Doram told said Charles S., that there was an alley sixty feet east of Elm street, in the rear of said lot, which said Charles was about to purchase, and further, at the time of such negotiation, showed Charles S. the now mutilated paper, of which the following only is legible: *“N. Longworth sells to Joseph Parker a lot on the east side of Elm street between 2d and 3d streets, next south of Thomas Dorand, twenty feet in front and running back to the alley sixty or seventy feet, price dollars front foot, payable in 2, 3, 4, 5, 6, 7, 8, 9, and 10 years, equal installments, with interest yearly, on condition”-. It was further proven, that Charles .Satchell’s lot, purchased after the conversation referred to, is next south on Elm street of the lot of Doram.,
    Plaintiff also introduced evidence, tending to prove that Long-worth at one time owned lots number 25 and 26, and other lots, in McFarland’s subdivision, and that about eight or ten years ago, he went to look after some property of his in that neighborhood, and then found Doram in possession of five or six feet of ground next south' on Elm street in addition to the part conveyed by Long-worth’s deed to Doram, the latter having a porch on it; that Doram then 'told Longworth, that G-., the city surveyor, in surveying his lot, had found that the line did not extend back seventy feet, and had given him that piece of ground to make up for the deficiency; to which Longworth answered, that the surveyor was not his agent, and that he (L.) would hold Doram to the original lines of his lot.
    Plaintiff further introduced Longworth as a witness, whose testimony tended to prove that he had seen in the record of deeds of said county, a copy of a plat of McFarland’s subdivision of the city of Cincinnati; and that the buildings and improvements in that part of the city have been made to correspond with and in conformity to the said plat of subdivision; that he had never seen what he believed to be the original plat of McFarland’s subdivision, but, within two or three years past, he had seen some one claiming to be an heir or agent of McFarland, who was trying to get money out of people, and had what he claimed to be the original plat of said subdivision.
    ^Evidence was further introduced by plaintiff, tending to prove, that on the north side of Green street (now called Pearl street), two alleys are open and have never been closed, and that the other alleys on both sides of the street, have, by consent of the parties who occupy the adjoining 'lots, been divided between them, and some of them have gates at each end to keep the hogs out, and that of the space or alley in question, about 3J feet yet remains open from Green street about 12 feet, that then, for about six feet a fence of Doram’s projects about one foot more to the line of Charles Satchell’s lot, where the space yet remains about seven feet wide till it comes to a stable built by one Franklin.
    Evidence was further introduced by plaintiff, tending to prove that about ten years ago, Charles Satchell’s lot was fenced in, and that in the rear or east side of said lot, he had a' gate opening out on the space now claimed as an alley, and through which himself and his family and his tenants in said dwelling-house passed at their pleasure, and that he and his tenants from time to time received their fuel and other heavy articles from wagons in the rear of his lot, and that there was a space not built upon then, in the rear of said lot, independent of the space for the alley; that the said Charles Satchell’s fence was sixty feet east of the street; that he had had his lot measured by the city surveyor, and it was found to be at that distance from Elm street; that the fence was a board one, and the fence on the east line of Doram’s lot was a continuation of the same fence and on the same line ; that afterward Doram built a cow-house in place of the pig-pens which.were there before, for a cow which died last summer (the life of a cow being about ten years), and that said cow-house was built outside and east of said fence, and so remained there till it fell down when William Satchell, the plaintiff, dug his cellar for his house.
    The original deed of Longworth, together with a certified copy of the same from the records, was put in evidence without objection. The description is as follows: “ The following described lot of ground in the city of Cincinnati, to wit, commencing on the east side of Elm street at the southeast corner of said Elm and Green streets; thence south along the east side of Elm street twenty (20) feet; thence east on a line parallel with Green street seventy (70) feet, more or less, to the alley; thence north parallel with Elm street (20) twenty feet, to Green street; thence west along the south side of Green street (70) seventy feet, more or loss, to the place of beginning, being parts of lots Nos. 25 and 26 in the plan of subdivision made by William McFarland in Cincinnati.” This deed appears to have been recorded in June, 1807.
    After the admission of this deed in evidence, the plaintiff offered a paper and certificate as follows:
    
      William McFarland's Flat of Addition to Cincinnati.--r-“ A plan of the division of six lots situate, lying, and being in the town of Cincinnati, in the county of Hamilton, and State of Ohio, and numbered on the original plan of the said town of Cincinnati, two hundred and fifty-seven, two hundred and fifty-eight, two hundred and fifty-nine, two hundred and eighty-two, two hundred and eighty-three, and two hundred and eighty-four; which lots, according to this plan, are divided into thirty-six lots, each lot being thirty feet in front and seventy-two feet and one-third of a foot deep, the n umber of which will appear by this plan, with two streets, each forty feet wide, running eastwardly and westwardly, and five alleys passing through the said plan, northwardly and westwardly, each alley being seven feet wide; which streets and alleys are to continue for the use of the proprietors of the said lots forever.
    “Delivered by William McFarland.”
    
      «ELM STREET.
    
      
    
    
      *“ State.of Ohio, Hamilton County, ss:
    
    “ I, William Hoon, recorder of said county, do hereby certify that the foregoing is a correct copy, taken from boob G, page 321, of the records of said county.
    “ In testimony whereof, I have hereto set my hand and official seal, this 21st [-], 1851.
    [seal.] “ William Hoon,
    “ Recorder of Hamilton County, Ohio."
    
    This supposed plan appears to have been recorded in book Gr (an early book of Hamilton county records). It was rejected by the court below, to which plaintiff excepted.
    The plaintiff then offered the book of records itself (book G, page 321), which was also rejected by the court.
    (The deed to Charles Satchell conveys a lot described as “ all that certain lot in Cincinnati, on the east side of Thomas Doram’s lot, deeded to him by said Longworth [said Doram’s being the corner of Green and Elm streets]. The lot now conveyed is twenty feet in front on Elm street and runs back to the alley sixty feet.”)
    The defendant introduced James Miles and other witnesses, who testified that there was no alley at the east end of said Doram’s lot, which testimony the plaintiff moved the court to overrule, but the court denied the motion, and received the evidence.
    Under the provisions of the then statute, the plaintiff’s counsel demanded a written charge, which was given as follows:
    “The issue in this case may be stated as follows: The plaintiff claims that there was, before and at the time of commencing this suit (that is to say, on the 23d day of April, in the year 1846), a certain public alley, to the use of which he was entitled, running beside premises of which he was possessed, and that, for some time previously, the defendant' unlawfully obstructed the said public alley to the damage of the plaintiff. The defendant by his pleas substantially denies all these allegations, and you are to say whether the plaintiff has established his claim, and if so, what are his damages. In the first place, then, was there at the time *mentioned in the declaration, or at any time before the commencement of the suit, such a public alley? Proof that there was a private alley will not satisfy the plaintiff’s allegations; that is, proof of an alley provided for the use of adjoining proprietors of lots, is not proof oto,public alley. As to the proper proof of the existence of such a public alley, we have to say, in general terms, that it must be such as to establish: 1. A legal dedication as provided by statute. 2. A condemnation by some public authority competent for the purpose. 3. A dedication implied from acts of the owner, not amounting to a statutory dedication, but indicating the purpose to make a public alley; or, 4. A continuous and adverse possession and user on the part of the public for twenty-one years. And,
    “ 1. As to a statutory dedication. Do you find, from the evidence, that a plat has been made, acknowledged, and recorded, as provided by an act entitled ‘ an act to provide for the recording of town-plats,’ passed March 3,1831; or that there has been a dedication by the proprietor of the land at any time, according to the provisions of the statute then in force ? Has any plat been admitted in evidence by the court? or, if not, is the defendant estopped from denying the existence of such an alley, by the recitals in his deed? We charge you, that, as to any person purchasing on the east of plaintiff’s lot on the south side of G-reen street, the defendant is estopped from denying that there was, at the date of his deed, a public alley about seventy feet east of his Elm street corner, but that his deed does not admit the existence of an alley at the distance of sixty feet east of the Elm street corner, unless you find that there was, in fact, an alley laid out by means such as we have mentioned, or used as such at the date of the deed; for, if there was such an alley in fact, the actual location will govern, and the deed would only convey to the line of that alley.
    
      “ 2. Has there been a condemnation ?
    “ 3. If you do not find that that there has been a statutory dedication, *do you find that any person, while the owner of the ground, opened it to the public, or passively permitted the public to use it as a public alley for the space of several years ? Was this space of ground next the plaintiff’s premises ever opened and used by the public as an alley ? This is a simple question of fact.
    “ 4. Has the public acquired a title to the alley by continued user for twenty-one years, without the permission or sufferance of the plaintiff ? This also is 'a simple question of fact.
    “ We would here explain that, by the recital in the' defendant’s deed, he is estopped from denying that there was, at the date of that deed, a public alley at the distance of about seventy feet from the Elm street corner of defendant’s lot, and that this estoppel will apply to all the cases of dedication to which we have called attention, that is, it will practically warrant you in finding, that there was a public alley, however established ; but you must remember that this applies only to the time when the defendant received his deed, and to the point of space we have mentioned— that is, at the line of the lot extending about seventy feet east-war dly from Elm street, and does not apply to an alley sixty feet eastwardly from Elm street. If you find that there was, at any time, a public alley at the point claimed by the plaintiff, that is, at the side of his dwelling house, the presumption is that it continues to exist, unless the contrary appears from the testimony. The defendant claims that, for more than twenty-one years previously to the commencement of this suit, he was in the continued, uninterrupted, and adverse possession of the ground he is said to have obstructed. If so, he is not liable in this action. But his possession must have been continued and uninterrupted; that is to say, it must never have been abandoned or lost during twenty-one years of adverse possesion. If, during any part of the twenty-one years, the defendant ceased to occupy or control the premises, you must calculate from the date of the last interruption. But, we repeat, before you are required to examine the question of the defendant’s possession, yon must be satisfied that *there has been, at some time, a public alley running by the side of the plaintiff’s house. "If you find that there was such an alley, did the defendant obstruct it? If so, what were the circumstances of injury to the plaintiff, and what was the damage to him, looking at the nature of the obstruction and all the particulars of the injury? If there was no such alley, or if the defendant obstructed none such, of course your verdict must be for the defendant.”
    The defendant moved the court to charge the jury, “ That the parol admissions of the defendant to other persons than the plaintiff as to the fact that there was an alley in existence, do not prove that any alley was ever dedicated or condemned. Such admissions are only evidence tending to prove user, and they do not control the testimony upon that subject; and admissions of the existence of an alley, generally, do not avail, unless the location of the alley be established by proof, and found to correspond with the declaration.” The court further charged:' “We decline to give this charge as asked; but we give, in lieu of it — That the parol declarations of the defendant to any person who did not act upon the faith of those declarations, do not prove a statutory dedication or condemnation, even as verbal declarations of the existence of an alley, if made to persons who did not act upon the faith of them, are evidence of user only, or dedication less than formal or statutory; and defendant’s admissions of the fact of the existence of an alley, generally, are always competent, if shown to refer to the alley in question.” To which the plaintiff excepted.
    The verdict being for defendant, plaintiff moved for a new trial. That motion being overruled, and judgment entered on the verdict, a writ of error was sued out of the district court. That court affirmed the judgment of the common pleas. The plaintiff now seeks to reverse the judgment of affirmance.
    
      John Joliffe, for plaintiff in error.
    
      Pugh & Pendleton, for defendant in error.
    
      
       On this paper are certain indorsements of transfer, by way of security and otherwise, which are not material to be stated.
    
   *Ranney, J.

It is quite unnecessary to extend this report, by assigning the reasons, at length, in support of the ruling of the court below. It is enough to say, that those rulings have been carefully examined by us, and, so far as they are in any way material in this ease, we are entirely satisfied of their general correctness.

The grounds upon which those rulings were placed, will be found fully presented in the charge of the court below.

The judgment is affirmed.  