
    Francis Le Clercq and others, Inhabitants of the Town of Gallipolis, v. The Trustees of the Town of Gallipolis.
    Individuals owning lots in a town, adjoining an alleged public square, may sustain a bill in chancery to establish the dedication, and to preserve the public use.
    Where land in a town has been dedicated as a public square and used as such, the legislature can not authorize the town corporation to change its character.
    This is a bill in chancery, brought by five citizens-of the town of Gallipolis owning lots adjoining the public square, to assert the property of the inhabitants of the town in it, and to restrain the defendants from converting it to any other use.
    In October, 1790, a colony of Frenchmen was introduced into the territory northwest of the Ohio by an association called the Scioto Company, who contracted to sell them lands, including a city, to be laid off near the mouth of the Great Kanawha. As delays occurred in the progress of the settlement, the company stipulated to give each colonist one city and one four-acre lot as a compensation. In December, 1790, the company surveyed for the colony the town of Gallipolis, in its present form, leaving a large unsurveyed tract in the center, being the ground in question, which the colonists designated by the name of “La Place.” A kind of distribution of the lots was made among the colonists. “ The Place ” was occupied by a block-house and some slight erections. The affairs of the Scioto Company soon fell into confusion, so that they could not complete their contracts with the colonists, and to add to their embarrassment, the title to the land on which the town was situate was found to be in the Ohio Company. In 1795, the colonists appointed Messrs. Bureau, Barthlet, and Meigs to negotiate for the purchase, *who, on December 14, 1795, reported to a regular meeting of the inhabitants of the colony the terms on which the land might be obtained. The colonists accepted these terms by vote, and appointed seven commissioners by ballot to value the lots of the town and ascertain the rights of pre-emption, which arose from occupancy. These commissioners, in the execution of their duties, resolve, “ that the public good and convenience, and the interest of the inhabitants, require the streets and the Public Place shall remain free, and never be alienated or obstructed on-the bank of the river by any kind of buildings.” They number the lots, after the old survey, and set a value to each. The lots fronting “The Place” are appt'aised higher, because they say they are “ a source of wealth by tjieir situation,” and those more remote are set at a lower price, proportional to their distance from the center. This report, which is made an exhibit in the case, was communicated to the inhabitants at a meeting held on December 17, 1795; the plan of valuation was agreed upon by vote, and was signed individually by all the colonists, the amount of the valuation was collected, and commissioners were appointed to procure the title of the land.
    On January 7, 1790, the two. particular square miles on which the town of Gallipolis is situate was conveyed by the Ohio Company to Fearing and Meigs, in fee, but “ in trust for the inhabitants of Gallipolis, according to their several rights and interests, and agreeable to a plan adopted by the inhabitants of' Gallipolis on the 17th of December last.” The trustees have executed their trust by conveying the lots to individuals; they have made a plat of the town after the old survey, in which the controverted ground is left open, which plot was acknowledged on December 26, 1796, and has been recorded. No private buildings have been erected on the square except those of a very temporary character, and long since removed. A court-house and a market house now stand upon it. A jail was once erected there, but in 1817, when a proposition was made to rebuild it, the trustees of the town (the present defendants) remonstrated with the commissioners of the county against this proceeding, and declared by vote that “ they found of record an express reservation of the public square, as an ornament to the town, not to be alienated.” For nearly forty years the ground has been used as a ^public square, except so far as the court-house and market house have interrupted this occupation.
    By the act of February, 1834, Ohio L. L. 32-120, the president and trustees of the town of Gallipolis are authorized to survey this ground, lease it for ninety-nine years, and apply the avails to the improvement of the landing. The corporation have taken steps to execute these powers. The defendants show they own lots contiguous to the ground in controversy, the value of which is affected by this disposition, and asserting it was dedicated as a public square for the inhabitants of the town, seek to declare this use, and restrain the defendants from interrupting.it.
    Nye and Brazee, for complainants.
    Vinton, for defendants, maintained:
    1. The injury (if any) being to the public, the plaintiffs show no right to sue. 6 Ohio, 101.
    2. That no dedication was ever made by the proprietors of the town. That the declaration, “ that it should remain open,” was the act, not of the inhabitants, but of the committee, and unauthorized by their powers. That the “plan ” spoken of was not a plan of the town, for that was made before, but a plan of distribution, and as such was referred to in the deed of the trustees; that the proprietors of the town, at their meeting on the 17th of December, did no act affecting the public ground, but merely ratified the rights of pre-emption and the tariff of prices, found by the committee; that the land, therefore, has never been-dedicated to public uses, but remained with the proprietors an undisposed residuum, which either passed to the trustees of the town on its incorporation, or was liable to be devoted, like a highway, to any public purpose, by the supreme authority of the legislature. 4 Pet. 282.
   Judge Lane

delivered the opini on of the court:

No perticular words or ceremonies, or form of conveyances, is necessary to render the act of dedicating land to public uses effectual. Anything which fully demonstrates the intention of the donor, or the acceptance by the public, works the effect. The beneficial interest in the land was in the colonists since 1780. The legal title was acquired by their ^trustees in 1796, and it is convincingly, shown that all parties have united in some act of dedication for the use of a public square. The original survey of the town left the ground for this purpose, in conformity to our habits — in greater conformity to the habits and customs of the people composing the colony; the words “La Place” [the place], by which it is designated on the recorded plat, and by which it has always been distinguished, and to which no other interpretation can be fixed, in this connection, than a public square, or a plat of ground devoted to some public object. The acts of the commissioners, valuing the lots adjoining “La Place” at a higher price, “because it was forever inalienable, and to be kept open,” thus furnishing evidence of the object; the ratification by the inhabitants of these acts, in adopting this plan of valuation; the registration of the town plat by the legal owners, in 1796; the’ uses for thirty-eight years; the general belief of its dedication; the acts of the defendants, resisting the encroachments of the county, and declaring the reservation for this object by vote; all these show conclusively the dedication of the ground for the use of the inhabitants of the town.

The fee of lands dedicated to public objects sometimes passes directly to the corporation for whose use it is intended, and is sometimes held by a corporate town, or by a county, in trust for the uses designated. In the first case, as where land is given to a town for corporate purposes, a vesting by the present statute, 29 Ohio Stat. 351, or where land is acquired by a county by purchase, or where given for county objects, a vesting by section 4 of the act of 1800, 2 Ter. Laws, 43, an absolute estate is held by the corporation, which they may alien, 5 Ohio, 204, and third persons are not permitted to interfere with the management of their agents. 6 Ohio, 101. But when such corporation take as trustees, to hold to prescribed uses, the cestui que use requires a vested estate, the enjoyment of which may be obtained in chancery. In this case the land was either vested in the town for the use of the inhabitants by the general acts of dedication, or it passed to the county by the statute, to be held for this use. It has been settled in this court, that where land is dedicated to the use of the inhabitants of a town, one, or more, especially one.whose property is affected in value, may enforce the execution of the trust. 6 Ohio, 304. The plaintiffs may sustain ^their suit, unless the defendants prove the authority they claim, under the act of the legislature.

Among the inestimable advantages secured' by the constitution of Ohio to its citizens, is the inviolability of private property. The power of divesting the owner of his rights is limited by section 4 of article 7, to those cases where it is necessary for the public welfare. The transfer of specific property from, one individual to another, without pre-existent right, or the forfeiture for a penalty, or the consent of parties, can not be accomplished by direct legislative action. 3 Mass. 106; 11 Ib. 396; 16 Ib. 76, 215. So the franchises and powers held by a private corporation, can not be revoked, unless a forfeiture from misconduct by the company. 2 Mass. 143; 6 Cranch, 88; 7 Cranch, 164; 9 Ib. 43, 229; 7 Cond. 53; 1 Paige Ch. 107; 2 Kent Com. 305, 2 ed. And in public corporations instituted for political or civil purposes, as cities or towns, where no such limitation • attaches to the powers of the legislature, in case of a dissolution of the body by a repeal of the charter, the property it holds for others does not become the property of the state; it continues private property, 16 Mass. 76, 215; the trust does not cease when the trustee fails. Co. Lit. 115, a note. If the object of its creation can be attained, the court of chancery will enforce its execution. 9 Cranch, 52. Where circumstances are so changed, that the direction of the donor prescribing the use, can not be literally carried into effect, the legislature or the court, in those cases where general intention can be effected, may lawfully, in some cases, enforce its execution as nearly as circumstances admit, by the application of the doctrine of cy pres. 7 Vern. 36, 490; 9 Ib. 405; 1 Vern. 248; 2 Cox, 365. And where the object of the trust wholly fails, the fund does not become public property, but reverts to the donor.

In the case, then, before us, wherever the fee was vested it was held in trust as a public square, for the use of the inhabitants of the town. It was valuable property, appurtenant to the estates of the lot-holders. The statute professes to authorize the defendants to apply the land to a different purpose, without the consent of those interested, from the surmised greater convenience of the citizens. Our course of reasoning has led us to the conclusion, that the act confers upon the defendants no power to divert this property from its original use. Perpetual injunction awarded.  