
    John Brown v. Enos Manning and others.
    Dedication of lands for a public use accrues as a grant; a grantee is not necessary to its validity.
    A dedication in specific terms on the recorded plat of a town, is not to be affected by parol proof of the intention of the donors.
    Town plat made hy agent; his numbering of lots, laying out of streets, etc., recognized by the proprietors and acted upon by them, is sufficient proof of his authority.
    Individual owner of adjacent lots may proceed in equity to enjoin proprietors from making private appropriations of a square dedicated for public purposes.
    This is a suit in chancery reserved in the county.of Miami. The plaintiff is the owner of town lots Nos. 51 and 52, in the town of Piqua. The defendants are the heirs of Manning, who, with Caldwell, were the original proprietors of the land. In 1807 the town of Piqua was laid out by them, and a plat made, subscribed, and acknowledged by them, by their agent, A. Brandon, and recorded, Upon this map the lots are numbered, the streets named, field notes are appended, in which some of the lots are described as “ lying next the public squareand a piece of ground near the middle is mai’ked “P. Square." It is shown in proof that the proprietors have conveyed town lots, and have described some as “lying adjoining the public square,” and as “ numbered according to the recorded plat of the town in the recorder’s office.” The land has remained uninclosed, and used as a common until lately. The defendants are now asserting a title over the 299] ^property, have sold a part, and caused inclosures and buildings to be erected upon it. The object of this bill is to declare the title, and to cause the erections to be abated as nuisances.'
    The answers admit the proprietorship and laying out of the town; deny Brandon’s authority as agent; and aver that the ground in question was designed for the county buildings; that when all hope of placing the seat of justice in Piqua was destroyed, by the division of the county of Miami, they have entered and held possession, claiming title.
    Testimony is taken, which is noted below as far as necessary for decision.
    Crane and Schenck, for plaintiff:
    1. The original owner, John Manning, under whom the defendants claim, having laid out this square in Piqua, as a public square, recorded the town plat and sold building lots on the square, has thereby dedicated the same to the public. 22 Ohio L. 301; City of Cincinnati v. Lessees of Edward White, 6 Peters, 431. Brandon is proved to have been the agent for John Manning, and his acts as such have been repeatedly recognized by Manning. If the proceedings in relation to the town plat were not in strict •conformity to the law, though the defendants have not supported by proof this allegation in their answer, yet the acquiescence of Manning and his subsequent recognition of the acts of Brandon will preclude the defendants from setting up any claim to the public square. Pritchard v. Atkinson, 1 N. H. Cas. 1; 4 N. H. Cas. 420; Trenchard v. Price, 2 Mumf. 468.
    2. The complainant may maintain the suit; for the occupation of this square is not only a common or public nuisance, but works a special injury to the complainant, and affects the value and enjoyment of his property. Gardner v. Trustees of Newburg, 2 2 Johns. 162 ; Newburg Turnkike Co. v. Miller, 5 Johns. Ch. 101; Coming and others v. Lomazze, 6 Johns. Ch. 438 ; Attorney-General v. Nichol, 16 Ves. 338; 4 Ohio, 376; Mayo v. Marchie, 3 Mumf. 358.
    This ease is easily distinguished from that of Smith and others v. Comm’rs of Butler County, 6 Ohio, 101. There the complainants, alleging no individual injury, or if any, several *in- [300 juries, for which each of them had his remedy at law, sought to restrain the public agents of the county from leasing real property given for the erection of public buildings. In the present case, the right of the public to the use of the public square in Piqua'rests on the same principles as the right of the use of the streets. City of Cincinnati v. Lessees of White, 6 Peters, 431. The occupation of the square by the defendants materially affects the enjoyment and value of the property of the complainant. It is an obstruction which the defendants have no right to erect, and can not erect without those mischievous consequences, .which, upon equitable principles, should not only be compensated by damages, but prevented by injunction. Attorney-General v. Nichol, 16 Ves. 338.
    It is in strict analogy to the case of a commoner injured in his individual rights, and the right of complainant to maintain this suit is fully sustained by the case of Coming and others v. Lomazze, 6 Johns. Ch. 438. It is not one of those cases of “ rights purely public, which are to be enforced in the name of the state, or the officer intrusted with the conduct of public suits.” The complainant has an individual interest in this public square, acquired by purchase, and is not a mere volunteer to take charge of the public interest therein. The fee of this public square is vested in the county of Miami for the uses and purposes named and intended on the recorded plat of the town, and for no other use or purpose whatever. 22 Ohio L. 301. Shall the defendants, at this stage of the suit, abandoning the claim of the right which they have set up in their answer, admitting that they are trespassers on the public square, and that their tortious occupation works a special injury to the complainant, now object that the fee of the square has been conveyed to the county, and that the county commissioners only can restrain them from encroaching upon and occupying this public square ? Has the complainant no redress for the special injury he sustains by the tortious occupation of this public square, because the county commissioners may neglect to vindicate the-public interest? The complainant has assuredly, by his purchase of the, two lots on this public square, acquired an interest and right in all the advantages to be derived from its being maintained as a public square. His remedy, for tortious aggression upon the interests and rights thus acquired, can not depend upon the will of 301] the others. Such a dependence would ^destroy his right, for of what value is a right without a remedy for its enforcement? If the defendants intend to avail themselves of this objection, they ought, instead of setting up a claim, in their answer, to the public square, have demurred to the bill. Such an objection should receive no more countenance than one to the jurisdiction of the court. In a case in which the court had obviously no jurisdiction, the objection to the jurisdiction can never be made too late; but where it is doubtful, and the defendant, instead of demurring, has-answered in chief, it is too late, on the final hearing, to object to the jurisdiction. Wilson v. Cheshire, 1 McCord Ch. 233; Underhill v. Van Cortland, 2 Johns. Ch. 369.
    Grosvenor, for defendant:
    The principal question of fact to be settled in this cause is; did. Manning agree that in case the county seat was not located at Piqua, that he would give the square for a public common, or for any other purpose. The complainant alleges that he did make such agreement; and the defendants deny the obligation.
    I believe that no witness has sworn that he ever heard John Manning make such agreement, promise, or declaration. Mitchell comes the nearest to that point of any other; he says it was stated that the square was given for public purposes, and that if the county seat was not located at Piqua, the square was not to remain open, but to be leased for a seminary; witness is not positive that he ever heard Manning say this, but he heard Brandon say so.
    The abstract declaration of Brandon, who had no legal title in the land, but acting merely as a hired servant,-the surveyor and clerk of Manning, to write title papers for Manning to sign, could not pass the legal or equitable title from Manning.
    It appears to have been well understood at the time, that no title could be acquired from Brandon, but that the only legal title was in Manning, and he must have made or sanctioned such agreement, before any legal or equitable title could have passed; but there is no proof that Manning ever heard Brandon make such a declaration, and Manning himself appears never to have-made or sanctioned any such agreement or declaration, but, on the contrary, he steadily ^declared said square was for county [B02 buildings, and for no other purpose. It is apparent, from the-whole testimony, that the only inducement, for reserving the-square from sale, was for the purpose of leaving an eligible site-for the court-house and jail, and other county buildings; and the placing the county buildings on that square was the only consideration which Manning expected to receive for the ground, and the promise to give the ground for that purpose did not give any interest, either legal or equitable, to any individual. If any shadow of title was created by that promise, it was a conditional equitable interest in the county, and that condition not havingbeen complied with, Manning became again as much the legal and equitable owner of the ground as if no such promise or declaration had ever been made. The reference in the complainant’s deed to the public square, and its being so termed on the recorded plat, can only be considered as matter of description and •not as creating a title, nor is it to be considered public property, merely because the owner pleased to name it the public square. But if we were to admit that calling it the public square actually-made it public property, yet it would not convey any separate title, either legal or equitable, to the complainant. If any title to-said square did pass by the descriptive words used in the complainant’s deed, and in the recorded plat, it was to the county (for the town was not then incorporated), and that on the condition, that the county buildings should be erected on said square within a reasonable time.
    We contend that the complainant has no right to prosecute a suit against the defendants, to establish a right which can only exist in the county, or some other corporate body, and in which he has no separate interest; for if the complainant has this right,, every other citizen of the county or member of the corporation has the same right, and the door is opened for endless litigation, to the utter ruin of the defendants. 5 Ohio, 189, 204; 6 Ohio, 102; also, 4 Jacob’s Law Dic. 419, title Nuisance.
    The complainant alleges that the building of the defendants on said square is a common nuisance; and prays that the nuisance may be abated and perpetually enjoined. On this allegation and prayer of the complainant, he can have no relief in this court, for if his allegation be true, he has adequate remedy at law. 4 Jacob’s Law Die. 420, 421, title Nuisance. The complainant alleges that 303] Manning agreed *that if the county buildings should not be located on said square, then it should remain open as a public common. Were this allegation fully proved, he would have an adequate remedy at law, and not in this court. 1 Jacob’s Law Die. 517, title Common. With regard to the allegation that the defendants’ building on the square is a nuisance, the complainant is wholly unsustained by the testimony, for a decided majority of the witnesses concur in the opinion that the building is an advantage to the town, and that it would be advantageous to the general interests of the town to have the whole square built up.
    1 believe that no witness has sworn that said square, in any event, was to remain open for a public common, and the defendants positively deny the allegation; therefore, either in law or fact, the complainant has failed to make out the case.
   Lane, J.,

delivered the opinion of the court:

The subject .of appropriations for public purposes has of late been frequently under the consideration of courts in our country; and it is now well settled that where lands are dedicated by the owner to any lawful use, public, pious, or charitable, and are used for the object, and in the manner contemplated by the owner, it inures as’ a grant. The existence of a grantee is not essential to the validity of such dedication, nor is any particular form of words necessary to give it effect. If accepted and used by the public in the manner intended, it works an estoppel in pais, precluding the donor, and all claiming in his right, from asserting any ownership inconsistent with such use. Town of Pawlet v. Clarke, 9 Cranch, 292 ; McConnel v. Town of Lexington, 12 Wheat. 582; Beattie v. Kurtz, 2 Pet. 566; Cincinnati v. White, 6 Pet. 432; Rex v. Lloyd, 1 Camp. 262; Price v. M. E. Church, 4 Ohio, 547; Heirs of Reynolds v. Comm’rs of Stark, 5 Ohio, 204; McBride and Hueston, 6 Ohio, 101; Ladd v. Sheperd, 2 Str. 1004; Jarvis v. Dean, 3 Bing. 447.

It is not unusual for appropriations to be made for some purpose evidently public, where, from the want of certainty, it is difficult to learn the precise object. To ascertain this object, in this case, the parties attempt to discover the intention of the owners of the town. With this view, the plaintiff proves declarations by them that they intended to provide a site for a court-house, if 304] wanted, and, if not ^needed for that purpose, the square to remain open for the town; while the defendants attempt to prove that they designed, if no court-house should be erected upon it,, either to resume it or appropriate it to some seminary of learning. No such uncertainty rests on the case before us; for the acknowledgment and record of the town plat (which is the act of dedication, and which, by the operation of section 2 of the statute of 1805, for the recording of town plats [reprinted 22 Ohio Stat. 301], transfers the fee of the land to the county, and secures its use for the purposes designated on the plat), sufficiently defines the object of the grant; and no declarations or presumed intentions of donors can divert it to a different purpose.

It is clear that Brandon’s agency was authorized by the proprietors, for they have ratified it in various ways. They have adopted his numbers of the lots, they refer to his plat in their deeds as the “recorded town plat;” they bound some of the lots on the “ public square,” and the town has been occupied, in con- . fortuity with this plat, for twenty-five years. There is no higher evidence of the public appropriation of the streets and alleys of the town than of the square.

The present case is plainly different from any heretofore decided by this court. In Heirs of Reynolds v. Comm’rs of Stark, 5 Ohio, 204, the donation was for “county buildings.” In Smith v. Hueston et al., 6 Ohio, 101, the object of the donation was for “ public buildings for the inhabitants of the county of Butler.” By these grants estates were vested in the county as a municipal corporation, and became their absolute property. Here the land was set apart as a “public square; the use is raised and defined, ex vi terminorum, essentially for the benefit of the inhabitants of the towuj the due enjoyment of which will be secured by a court of chancery. 4 Ohio, 547 ; 5 Ohio, 204.

Objections are raised to administering this remedy, at tfie instance of these parties, and we are referred to the opinion of the-court in one of the above cases (6 Ohio, 102), in which it is said, that “ rights purely public are to be enforced in the name of the state or of its acknowledged agents>” In that case the injury, if ;any, was done to the county, which should be repaired in a suit in its name and at the .instance of the proper officers; but the remedy was denied to those plaintiffs because they were volunteers :305] only, having no ^individual interest. The judge, however, proceeds, in the report, to show that the bill could not be sustained under the well-established principles applicable to the case ¡before us, that one commoner may prefer his suit to sustain the common interest (2 Pet. 585; Mitford’s Pl. in Ch. 145; Ch. Cas. 272 ; Cooper’s Eq. 41; 1 Atk. 282) ; and that one creditor (2 Ves. 312; 28 Ves. 78; 2 Johns. Ch. 296; 6 Ohio, 112), one legatee (4 Johns. Ch. 619, 303 ; 3 Johns. Ch. 553; 3 Br. Ch. 229), or one of a great number interested, under peculiar circumstances, and, for ■convenience, representing the whole (6 Ves. 779; 11 Ves. 429; Prec. in Ch. 592; 12 Ves. 542), may litigate for the benefit of all. 'This bill is not skillfully drawn; yet it sufficiently appears that the plaintiff is one of the inhabitants of the town, living and holding property contiguous to the square, the value of which is .affected by the dedication. He is, therefore, not a volunteer assuming to protect the rights of others; but entitled to this remedy for the protection both of his individual and his common interests. ■Case remanded to the county, to settle the terms of the decree.  