
    Mary A. Todd v. The Pittsburg, Fort Wayne & Chicago Railroad Company.
    1. Where husband and wife executed, acknowledged, and put upon record a plat of a town, laid out on lands of the wife, exhibiting thereon a railroad track, and having inscribed upon a lot adjoining such track the words “ Depot of Ohio and Penna. R.R.,” this did not constitute a dedication of said lot to the railroad company, nor to a public use.
    2. Nor will acts of the wife during coverture, tending to show an agreement on her part to donate said lot to the railroad company, on the faith of which such company has acted, estop her from asserting her rights of ownership therein.
    Error to the court of common pleas oi Columbiana ■ county. Reserved in the district court.
    On the 29th of January, 1862, Mary A. Todd filed" her ■petition in the court of common pleas of Columbiana county, •.against the Pittsburg, Fort Wayne and Chicago Railroad • Company, to recover the possession of two acres of land, more >or less, described, excepting therefrom a piece of land two hundred feet in length and one hundred feet in width out of the south-east corner, claiming that she was entitled to the (possession of the land, and that it was wrongfully detained •from her by the railroad company.
    The railroad company denied the alleged right of the plaintiff to the possession, of the premises in dispute, alleging, camong other things, in substance, that the company, when lo-eating its road, was induced by the plaintiff and her husband, then living, to abandon the contemplated route on the north side of the village of Columbiana, and locate and construct the road as it now runs on the south side of the village through the plaintiff?s lands, and to place the company’s depot thereon; the alleged inducement being that the plaintiff and her husband proposed to lay out an addition to the village, including the land in dispute, and to convey and dedicate such land to the Ohio and Pennsylvania Railroad Company (to whose rights the defendant succeeded) for depot grounds; and that the company accepted such proposal, and changed the route of its railroad as stated.
    The plaintiff by reply denied that she ever held out the inducements or induced the company as stated in the answer.
    A further statement of the allegations of the answer and reply is not necessary, as the cause was tried to the court in February, 1854, and the court found the facts, specially, in substance, as follows:
    On the 1st of April, 1849, Mary A. Todd, the plaintiff, was the owner, in fee-simple, of a farm near the village of Columbiana, and was then the wife of John Todd, and remained under coverture until his death, which occurred October 1st, 1854.
    The Ohio and Pennsylvania Railroad Company, a corporation organized under a charter granted by the legislature of the State of Ohio (passed February 24th, 1848; O. L. L., vol. 46, p. 261) to construct a railroad from any point in the eastern boundary line of the State of Ohio, within the county of Columbiana, to Mansfield, in the county of Rich-land, in that State ; and, by charter granted by the legislature of the State of Pensylvania, to continue said railroad from the eastern boundary line of Ohio to the city of Pitts-burg, in the State of Pennsylvania, proceeded to make a survey of the line of road, and at and near the village of Columbiana surveyed two experimental lines, one running south of the village of Columbiana, and over the lands of the plaintiff, and the other running north of the village. The company then proceeded to ascertain what terms it could make; with persons owning lands on each of the two routes as to the right of way for the road and depot grounds for a depot at the village of Columbiana. Offers of right of way and depot grounds were made on both the routes suxweyed.
    On the 26th of Octobex1, 1849, John Todd, the husband of the plaintiff, made a written proposition to the company, signed by himself, reciting that, in consideration of one dollar paid to him by the company, and of the benefits to accrue to his property by the construction of the railroad, he would grant to the company the light of way for its road over any of his laxxds, and particularly the lands on which he then resided, being the farm owned by his wife, and offered the company a piece of land one hundred feet wide and eight hundred feet long for depot pur-poses; and proposed that the company might immediately take possession of the land, and that he would execute any deed or other instrument of wilting to the coxnpany to perfect the xlghts proffered it, on request. This proposition was made for the_ purpose of inducing the railroad company to locate the line of its road on the southern route, and over the lands of the plaintiff, and to locate the depot on these lands.
    On the 23d of May, 1850, the plaintiff and her husband, by deed duly executed, conveyed to the company the right of way over these lands, but the deed does not embrace the depot grounds, or any part thereof, or in any manner refer thereto.
    On the 30th of October, 1850, the plaintiff and her husband executed and acknowledged a plat of lots, and caused the same to be recorded in the proper record book in Columbiana county. The plat is called the “ southern addition to the town of Columbiana by John Todd.” It is located on the north side of the Ohio and Pennsylvania Bail-road. The railroad is laid out on the plat, and along the nox’th side of the raili’oad, on the plat, is a piece of ground (of which neither the length nor the included area is stated), distinctly colored and defined, of an oblong shape, with these words upon it :• “ Depot of Ohio & Penna. B. B.” It contains, by actual suiwey, one acre and ninety-four hundredths of an acre, and is the identical two acres more or less described in the plaintiff’s petition, and is part of the plain tiff’s said farm.
    It was the intention pf the plaintiff and her husband to donate to the company depot grounds at the village of Columbiana, and the company entered upon and took possession of the parcel of ground marked “ Depot of Ohio & Penna. R. R.,” as stated above, and has ever since continued in possession, and has erected partly thereon a depot building at a cost of $400; the principal part of the building is, however, on the lands embraced in the deed for the right of way. The company has also constructed switches to some small extent upon the land in dispute. The company has not used for depot purposes, at any time, more than one third of the land in dispute, and the agent of the company has, on his own account, fenced up and farmed part thereof, but no evidence was offered that this was done by direction, authority, or license of the company.
    After the execution of the plat, a bill was printed and posted, containing at the head thereof a lithographic copy of the plat, including the depot ground, and below it the statement, signed by John Todd, that he would offer at public sale, on Wednesday, the 6th of November, 1850, at Columbiana, “ the above southern addition of town and out lots, situate upon the line of the Ohio and Pennsylvania Railroad Company,” referring to the heavy business in produce annually done, and that, with railroad facilities, it would be immensely increased, etc., and stating that the directors of the company had selected their site for a depot as shown on the plat, etc. This bill was printed and published by the plaintiff’s husband with her knowledge and consent, and on the day named therein there was a public sale of the lots on the plat according to the numbers thereon, with the plaintiff’s knowledge and consent. At the salet lot No. 63, immediately east of the parcel of ground marked “ Depot,” etc., was reserved by John Todd, he then intending to erect a warehouse thereon, and reserving the same for that purpose, by reason of its contiguity to the depot grounds, as marked on the plat, etc. At the public sale several lots were fold; and by reason of the location of the depot on the plat, the lots adjacent thereto sold for higher prices than they would otherwise have brought. Afterward lot marked 63, so reserved as a warehouse lot, was purchased by a third party for that purpose, and he paid therefor, to the plaintiff herself, an increased price by reason of its contiguity to the depot and its fitness for a railroad warehouse lot on that account; of all which the plaintiff was fully advised at the time, and the purchaser erected on the lot a railroad warehouse, at a cost of $6000, which would be greatly reduced in value by the depot. Upon other lots then and since sold by the plaintiff, upon the faith of the location of the railroad depot, at an increased price, a tavern and storehouse and other buildings, have been erected, which would be greatly reduced in value by the removal of the depot or by selling a part thereof, and thus interposing other buildings between the tavern, storehouse, etc., and the depot.
    The parcel of land marked on the plat “ Depot,” etc., contains more ground than is now absolutely necessary for a depot for the company, but at some future time all or nearly all the ground might be profitably employed for that purpose.
    During the lifetime of her husband, the plaintiff, in conjunction with him, properly executed deeds for the different lots on the plat sold from time to time, conveying them to the several purchasers in fee-simple, and since her husband’s death she executed deeds for lots sold, in due form. In these deeds, executed as well before as after her husband’s death, the plaintiff refers to the plat, and describes the lots sold by the numbers on the plat, and by the streets laid down thereon, and fully recognizes the plat. During the lifetime of the plaintiff’s husband, she never made any claim to any part of the premises in dispute; biit very soon after his death she called upon the president of the company, and then claimed that she never did or intended to donate to the company the whole of the land embraced in the parcel marked “ Depot,” etc., on the plat, but only intended to donate a part of it, now excepted in her petition. She has ever since claimed the other part.
    It is also found by the court, that, by virtue of the proceedings had under the laws of the States of Pennsylvania, Ohio, Indiana, and Illinois, the Ohio and Pennsylvania Railroad Company, and the Ohio and Indiana Railroad Company, and the Port Wayne and Chicago Railroad Company have become consolidated and merged into the Pittsburg, Port Wayne and Chicago Railroad Company, the defendant, and that, under and by virtue of those laws and proceedings, the defendant is entitled to all the rights of the Ohio and Pennsylvania Railroad Company in the premises, and succeeded that company in the ¡oossession of the land, and now claim, under the consolidation, the rights acquired therein by that company, and is in possession of the premises, and entitled to all the rights of that company therein.
    The only rights of the defendant are those existing under and by virtue of the facts stated. •
    Upon these facts, the court of common pleas held that the defendant was entitled to judgment; and it was so entered, and exception taken.
    To reverse this judgment the plaintiff filed a petition in error in the district court, and the same was therein reserved to this court for decision.
    
      J. H. Wallace for plaintiff in error:
    1. The court erred in holding that the facts as found were sufficient in law to constitute an act of dedication, on the part of a married woman, of the ground sought to be recovered, to the defendant.
    To constitute a dedication, the authorities all agree that two things are necessary, —
    (1) . The assent of the owner, who in this case was a married woman; and she expressly denies any such assent, and asserted her rights the moment she ceased to be a feme covert.
    
    (2) . The possession and use of the same with such assent. No one will claim that its occupancy, without her consent 
      legally obtained, could ever establish a dedication. Irwin v. Dixon et al., 9 How. 30; Cincinnati v. White, 6 Peters, 431; Village of Fulton v. Mehrenfeld, 8 Ohio St. 446.
    2. The court erred in holding that a married woman could be divested of her right and title to real estate in a mode other than that pointed out by the laws of Ohio. 10 Ohio, 117; Jenney et al. v. Gray, 5 Ohio St. 49; Miller v. Hine, 13 Ohio St. 565; Tyler on Infancy and Coverture, 421; Cord on Rights of Married Women, sec. 420.
    But it is claimed that she acknowledged the plat, that it was placed upon record, and that by the 8th section of “ An act to provide for the recording of town plats,” “ the fee-simple of all such parcel or parcels of land as are therein expressed, named, or intended for public use, vest in the county in which the town is situated.”
    .This clause has undoubtedly reference to streets, alleys, public squares, etc.; but how it can be construed to mean “ depot ground and railroads,” which may happen to be marked upon the plat, I am unable to discover.
    It is also alleged that she ratified the plat after the decease of her husband, by making deeds for other lots, in which she referred to it in giving the numbers, etc. That might answer if she was suing lot owners, but how can it avail the defendant in this case ? Within two years after the building of the road, and before any improvements were made upon the ground, she claimed, and immediately after her husband’s death she notified the company of her rights, and demanded possession, which was refused, and she brought her action to enforce a right she had never lost by act, word, or deed.
    The rule of estoppel has no applicability in this case, as she at once, on ceasing to be a feme covert, asserted her rights.-
    A corporation such as the defendant, upon which has been conferred special privileges, can obtain real estate by the following methods only: 1st. By purchase. 2d. By donation. 3d. By appropriation under the statute.
    It is not claimed that the defendant either purchased or appropriated this land under the statute, and if donated, that could only be done by the real owner, of which there is no evidence in the case.
    It is singular that the company took a deed in due form for the right of way, and now attempt to rely upon donation or dedication, for ground adjoining, when the same plat which it is now asserted dedicates to the defendant the. land in dispute, would with equal force dedicate the right of way as well.
    
      Ba/iobie <& Brooks for defendant in error:
    1. There was a good statutory dedication of the lands in question to the Ohio and Pennsylvania Baili'oad Company. Lands may be appropriated by railway companies for depot purposes, as well as for the right of way, and when so appropriated are taken for a public use. Giesy v. C. W. & Z. R. R. Co., 4 Ohio St. 308. That a railway, used by a company, as a common carrier of passengers and goods, is a public highway, cannot be doubted. 4 Ohio St. 325.
    In such cases, whilst the corporation is composed of private individuals, the road is built and owned by the corporation as a public instrumentality. Lands, therefore, appropriated or dedicated to such a purpose are appropriated or dedicated to a public use. And, by a fair and reasonable interpretation, such use is a public use within the meaning and provisions of the act of March 3d, 1831, providing for the recording of town plats. S. & C. 1482 et seq.
    
    From the findings of fact by the court below, it appears that it was the intention of the plaintiff and her husband to dedicate the land, as named on the plat, to the Ohio and Pennsylvania Bailroad Company for depot purposes, and being so named on the recorded plat, and intended by them for public use, the fee-simple of the land vested in the county of Columbiana, in trust, for the public’uses named and intended, by virtue of the 8th section of the ’ act above referred to. S. & C. 1484; and see Board of Education, &c., v. Edson et al., 18 Ohio St. 221, 226.
    Should the court hold that there was not, for any reason, a statutory dedication, then we claim —
    
      2. That there was a good common-law dedication of the lands in question. 8 Ohio St. 440, 445; Washburn on Easements, &c., pp. 133, 138; 6 Hill, 407.
    But it is claimed that it is not, in any event, binding on the plaintiff, as a common-law dedication, for the reason that she was a married woman at the time, and that therefore the doctrine of estoppel w% pais does not apply to her. It is true that “where there is no express grant to a grantee upon consideration, a dedication of ground to public uses at common law operates by way of an estoppel in pais of the owner, rather than as a grant or the trcmsfer of an interest in the land,” is settled law, as declared in 8 Ohio St. 444; but that the doctrine of estoppel .does not apply to a married woman, is not law. It has been applied in many cases to manned women. Lessee of Hill v. West et al., 8 Ohio, 225; O. & M. R. R. Co. v. Crary and wife et al., 1 Disney, 128, 137; 2 Lead. Cas. Eq. 19, 20, 21; Smiley and wife v. Wright et al., 2 Ohio, 514; Rostelter and wife v. Grant, 18 Ohio St. 126; Schenley v. Com. 36 Penn. St. 29, 62; Washburn on Easements, &c., 132.
    But the plaintiff, since the death of her husband, by her acts and conduct, heretofore and hereafter enumerated, has adopted the plat and dedication as her own. If she is not estopped by her acts and conduct while covert, she is estopped by her acts and conduct as a feme sole after that disability was removed.
    Since her husband’s death, she has sold lots by their platted numbers, bounding them by the streets marked upon the plat; and she concedes that she did intend by the plat to donate land to the company for depot grounds, and only asks the court to determine whether she donated all, or a part only, of the land delineated on the plat; and that she did donate the whole tract, is settled by the facts as found to be true by the court.
    Making this plat with an intention to dedicate the streets and depot grounds to public use, and that dedication accepted, is a common-law dedication, and the law, upon such a state of facts, so declares it. The plat, as a common-law dedication, is an entirety, and as such was adopted by the plaintiff; and reason, justice, and equity alike require that she should abide by it.
    3. Upon a principle analogous to that of dedication to public uses, we claim that the plaintiff is estopped to dispute the right of the defendant to the possession of the land in question.
    If for any reason there was not a dedication of the land to public use, the promise and agreement of the plaintiff and her husband, to devote the land to depot purposes, as connected with, and as a part of the beneficial enjoyment of the right of way conveyed to the company, worked a dedication of the land to such use, as between the parties, their heirs and assigns. It operates by way of estoppel; and a retraction of such promise and agreement would perpetrate an outrageous fraud upon the company, which acted upon the faith thereof; and the plaintiff’s coverture will not defeat the application of this estoppel. Washburn on Easements, &c., *129, 141; Child v. Chappell, 9 N. Y. 246, 256.
    Again, it appears that, after the death of her husband, plaintiff deliberately took to herself the benefits of the contract — the benefits contemplated to inure to her by reason of the contract. She sold the remaining lots at the increased value put upon them, by the act of the company in locating the road and depot at that point; and did not commence her action until eight years after the death of her husband, and not, it is fair to presume, until she had exhausted the sale of the lots. Added to this is the fact that she has expressly affirmed the contract, since her husband’s death, only disputing that she consented to the donation of the whole tract; but the statement of facts found by the court to be true shows that she did assent to the donation of the whole.
    We say, then, that if, as an agreement, it was void originally as to her by reason of her disability, she has, since that disability has been removed, adopted it as her contract, and is bound by all of its conditions, and is not therefore entitled to recover the possession of any portion of the land. Worthington's lessee v. Young, 6 Ohio, 335.
   Scott, J.

It is not denied in this case but that the plaintiff has a regular and perfect paper title to the premises in question, and her right to recover the possession of them is unquestioned, unless the facts found by the court below debar her from such right of recovery, and give to the defendant a right to their permanent occupancy and use.

It is not claimed that the plaintiff has ever, by deed executed pursuant to the requirements of the statute, conveyed any interest whatever in the premises to the defendant. But the claim is, first, that the facts found by the court show a statutory dedication of the premises for defendant’s use. It appears that, on the 30th of October, 1850, she united with her husband in the execution and acknowledgment of the plat of a portion of her lands adjoining the village of Columbiana, which they had caused to be laid out into town lots, with streets, alleys, &c., and designated as the “ southern addition to the town of Columbiana.” The line of defendant’s railroad had been previously located over the lands constituting this “addition,” and was shown on the plat. The premises in controversy were marked upon this plat by boundary lines, of which neither the length nor the included area was stated, but the lot was marked and designated as the “Depot of Ohio & Penna. R. R.” It is claimed that the execution, acknowledgment, and recording of this plat constituted a dedication of the lot in question to the defendant, or rather to the Ohio and Pennsylvania Railroad Company, to whose rights in that behalf the defendant has succeeded. But we cannot concur in this view. A dedication is an appropriation of lands to a public use. In such case the direct beneficiary is the public. "Wherever the legal title may be vested, the right to the use is in the public. But the defendant here is a private corporation. Its road, its rights of way, its depots, its offices, its rolling stock, &c., are all, not public, but private property. They are owned by the defendant. But among the various methods by which private property may be acquired, dedication is not one. The statute provides that railroad companies may acquire sites for depots, &c., by donation, by purchase, or by appropriation. In the case of a donation or purchase, a formal conveyance is necessary to pass title. In case of an appropriation, the interest is acquired by the judgment of the court in which the proceedings are had. But no provision is made for acquisitions by dedication. It is but a fallacy to suppose that there is a dedication in the case, merely because the defendant, for its own gain, has assumed toward the public the relation of a common carrier.

The act of the plaintiff and her husband, in marking the lot, upon the plat, as the depot of the railroad company, certainly indicated that they expected it to become the private property of the corporation whose name' it bore, and not that they intended to dedicate it to a public use.

It is farther claimed for the defendant, that if the case be not that of a dedication to a public use, yet that, on a principle analogous to such dedication, the plaintiff is estopped to lispute the right of the defendant to the possession of the land in question.

The plaintiff in her reply denies that she ever held out any inducements to the railroad company, by which it was induced to change the route of its road, as alleged in the answer. The court found that her husband, John Todd, in October, 1849, for the purpose of inducing the railroad company to locate the line of its road over plaintiff’s land, and to put its depot thereon, proposed in writing to said company to grant if the right of way for its road over said lands, and also to give it a piece of land one hundred feet wide and eight hundred feet long for a depot; but it is not found that this proposition was made with the knowledge or assent of plaintiff, nor that the railroad company was induced thereby to select the present location for the line of its road. It was farther found, that the plaintiff with her husband did convey to the railroad company the right of way for its road, in May, 1850; and it appears from the pleadings in the case and the findings of fact that she has always acquiesced, and still acquiesces, in the occupancy by defendant of so much of the depot grounds, so called, as has in fact been hitherto occupied, or is at present necessary for depot purposes. It is, therefore, by no means certain that her present claim is inconsistent with the obligations of the strictest good faith. But were it otherwise, were the acts of her husband to be regarded as her acts, still it is to be borne in mind that she was, during all this time, a feme covert, subject to and protected by the disabilities incident to coverture. Immediately after the death of her husband in 1851, she asserted to defendant her present claims; and nothing is shown to have since occurred which could affect her rights as against the railroad company. During her coverture she had no. power to bind herself by contract. No agreement of hers for the conveyance or incumbrance of her real estate, however solemnly entered into, could be enforced by a decree for specific performance. She could only dispose of or encumber it in the mode prescribed by the statute. Purcell v. Goshorn, 17 Ohio, 105; 10 Ohio, 117; Miller v. Hine, 13 Ohio St. 565.

And what she could not deprive herself of by direct and express contract with the defendant, we think it clear that she could not lose by the indirect method of an estoppel in pais, arising from facts such as those found in this case.

The judgment of the court below must be reversed, and judgment entered for the plaintiff.

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