
    Lewis Wisby v. P. C. Bonte and James Reynolds, partners as P. C. Bonte & Co.
    1. Where commissioners in proceedings in partition lay out grounds in a city into lots abutting on a street, which they also lay out and declare in their report to be dedicated and set apart for public use forever, and the parties take possession of their respective allotments under the partition, the parties and their privies, as between themselves, while the partition subsists, will be estopped from questioning the existence of the street; and after they have allowed the city to take possession, of and improve it, the estoppel becomes equally effective between them and the city.
    2. Section 63 of the municipal corporation act is not intended as a limitation upon the general powers of the corporation for opening and improving streets, but as a restriction to prevent proprietors, who may lay out ground into lots within the limits of the corporation, iom vesting in the corporation the title to streets and alleys, and thus charging the corporation, without its consent, with the duty of keeping them open and in repair.
    Error to the superior court of Cincinnati.
    The original action was brought under the statute to enforce the collection of an assessment charged upon the property of the plaintiff in error, the defendant below, for the improvement of a street.
    It appears from the petition:
    That on the 16th of Juné, 1863, the board of city improvements of Cincinnati recommended to the council of the city the passage of an ordinance to grade Oehler street, from Freeman street (its beginning) to Gerard street (its terminus).
    That on the 19th of June, 1863, the city council did order the street to be graded as recommended.
    
      That on the 23d of February, 1864, the plaintiffs contracted with the city to do the grading, and that on the-day of September, 1865, the commissioner (being one of the board of city improvements) of the district in which Oehler street lies, gave them his certificate that they had graded the street according to the terms of their contract.
    That thereupon, on the 22d of September, 1865, the city council of Cincinnati passed an ordinance assessing the expense of the grading on the lots fronting and abutting on the street.
    That Lewis Wisby (the plaintiff in error) is the owner of one of the lots, being lot No. 41, of twenty feet front and eighty feet deep; and that the assessment upon the same, by virtue of the ordinance, amounts to $49.14.
    The prayer of the petition is, that the lot may be sold and the proceeds thereof applied to the payment of the assessment.
    The defendant answered:
    1. That Oehler street never was dedicated to public use, either as a street, alley, or highway, and never was, and is not now, a public street or highway.
    2. That if the street ever was dedicated, as required by law, such dedication never was “ accepted and confirmed by an ordinance specially passed for such purpose ” by the city council of Cincinnati, as is required by law to be accepted, and is not now, and never was, under the care and control of the city council or city of Cincinnati.
    The following facts appeared on the trial:
    In the year 1856, on proceedings in partition among the heirs of Simon Oehler, deceased, in the court of common pleas of Hamilton county, the commissioners appointed to make a division among the parties subdivided the property laying out through the entire estate a street, to which they gave the name of Oehler street, bounding thereon the lots comprised in the subdivision, and returning the order of partition, with a plat of the subdivision thus made, to court, using this language in their report: “We do dedicate and set apart for the public use forever hereafter the streets roads, and alleys, as laid down and designated on said plat, and for no other purpose whatever;” which proceedings were afterward, in the same term, approved and confirmed by the court. The defendant is the owner of lot numbered in this subdivision forty-one, fronting on the south side of Oehler street, twenty feet in front and eighty-one feet in depth.
    After the defendant became the owner of the lot, the city council of Cincinnati, to wit, on the 10th of. June, 1863, passed an ordinance in due form, that Oehler street, from Freeman to Gerard streets, should be graded, declaring such improvement and repair to be necessary, and prescribing the mode in which the cost and expenses were to be assessed.
    On the 22d of February, 1864, the city auditor, by authority of the council given him, as required by law for that purpose, made an agreement with the plaintiffs, on behalf of the city, by which the plaintiffs were to grade said street, and be paid therefor as stipulated in the authority previously conferred by the council on the auditor. In pursuance of this agreement, the plaintiffs performed the work to the acceptance of the proper officer of the city; whereupon an ordinance was passed by the council, assessing a special tax on the property abutting on the street, a portion of which was imposed on the lot owned by the defendant, pro rata, with the other owners of similar property in the thoroughfare. The amount claimed from the defendant was demanded, but he declined to pay it.
    In addition to the ordinances of the city and the other evidence, showing the facts above refei*red to, introduced in evidence by the plaintiffs, the defendant gave in evidence the following written admission signed by counsel:
    “1. It is admitted that Oehler street was never dedicated to public use, either as a street, alley, or public highway, and never was, and is not now, a public street or highway, except so far as the same has been dedicated or is a public street, alley, or highway, by virtue of the ‘report of the commissioners in partition, and the decree of confirmation ’ in case No. 13,323 of the court of Hamilton common pleas, offered in evidence by the plaintiffs.
    “ 2. It is further admitted, that if, by virtue of said report and confirmation, ‘a dedication of Oehler street’ was effected, such a dedication has never been acccepted by the city of Cincinnati.”
    The finding and judgment at special term were for the plaintiffs below. The court, in general term, on error, af firmed the judgment; and the present proceeding in error is prosecuted for the reversal of the judgments thus rendered.
    
      Long ds Ho effer for plaintiff in error:
    1. The “ dedication ” of Oehler street was not effected by virtue of the proceedings and report of the commissioners, and the confirmation of the same in the partition case.
    It is not denied that the proceedings in partition were had under the statute/ this being conceded, it cannot seriously be disputed that the only rights and powers of the commissioners were those conferred upon them by the statute, and which are found in S. & C. Stat. 896-7, sections 4, 5, 8, 9. These sections, like all others in the statute books of Ohio, fail to empower commissioners in partition to lay out streets and alleys, and especially to dedicate them to public use. The action, therefore, of the commissioners in laying out Oehler street being unsupported by the statute, and not only in excess but contrary to law, is absolutely void. 5 Bac. Abr., title “ Void and Voidable,” “A,” part 1; Arnold v. Fuller's Heirs, 1 Ohio, 458-467; Ludlow's Lessee v. McBride, 3 Ohio, 240-259; Goforth's Lessee v. Longworth, 4 Ohio Rep., p. 129-131; Terrell v. Auchauer, 14 Ohio St. 80-85; Commissioners of Knox v. Nichols, 14 Ohio St. 260.
    But it is insisted that although the commissioners may not have had any authority to lay out and dedicate this street, yet the parties having taken possession under the subdivision thus made, recognizing the existence of the street by conveying lots as fronting upon the same, are now “estopped”' from denying the validity of the action of which they com'* plain.
    
      As between tbe heirs and their grantees, this proposition is undoubtedly true; the law would not permit the heirs to sell lots as fronting upon a street, and then take possession of the street as private property, cutting off the grantees from all egress from, and ingress to, their property.
    But the proposition is untenable as between the heirs or their grantees and tim'd parties. It is a well-established rule of law, that the doctrine of estoppel can be effective only when pleaded by those who have an interest in the subject-matter.
    But third parties or the public have no interest in private property opened or laid out as a public street or highway. The mere and single fact that a street has been laid out or opened as a street, never makes such a street a public street, and therefore we are not estopped from showing that it is not a public street. Clements v. The Village of West Troy, 26 Barb. 251; Willoughby v. Jenks, 20 Wend. 96; In the Matter of Seventeenth street, 1 Wend. 262; In the Matter of Lewis street, 2 Wend. 472.
    We therefore claim that the plea of estoppel is ineffectual •'in this case; and it being the only support of the presumed “dedication” of Oehler street, it is evident from the proof offered in the cause that there is in fact no “ dedication ” of .the street shown or proven.
    2. If, however, the dedication of Oehler street by virtue of the proceedings and report of the commissioners in partition, was effected, still we insist that the city council of Cincinnati 'had no right to improve the street until such dedication was accepted and confirmed in the manner pointed out by the statute of Ohio. S. & O. 1514, see. 63 of the act of 1852.
    From this section of the statute it would seem that Oehler street, which was dedicated, if dedicated at all, in the year 1856, long after the taking effect of the act of 1852, is not a public street, the dedication thereof (as is admitted) never having been accepted and confirmed, as is required by said • act; and further, that the assumption by the city council of the “ care, supervision, and control ” of the same, when net ¡a public street, was illegal, and rendered the assessment So fray the expenses of the improvement absolutely void as against the property or the owners thereof.
    Whether it be claimed that the dedication of Oehler street was “express,” operating by way of grant, or “in pais,” operating by way of estoppel, the requirement of the statute that the “ dedication ” shall be accepted and confirmed by an ordinance specially passed for such purpose, is alike applicable.
    If, for the sake of-argument, we concede that the ordinance passed by council to grade Oehler street, implied an acceptance of the dedication of the street, or was an actual acceptance, nevertheless the assessment would be invalid. S. & O. Stat. 1526, sec. 101.
    But we are unable to conceive how it can be said that the ordinance to grade Oehler street imp lies or is an acceptance of the dedication of the street, when, in fact, the ordinance makes no reference at all to the dedication. But even if it made reference to the dedication, it would not answer the requirements of the statute, because the statute -expressly says that “ the dedication shall be accepted by an ordinance specially passed for that purpose.” The dedication could only be accepted in manner and form as provided by the act of 1852. Clements v. The Village of Troy, supra; Underwood v. Stuyvesant, 19 Johns. 180; Holmes v. The Mayor &c., of Jersey City, 1 Beasley's Ch. 299.
    
      Morrill & WdlJcer for defendants in error:
    The plaintiff in error is estopped by his own acts from setting np a defence of this kind at the present time.
    The whole doctrine of dedication rests upon this doctrine of estoppel. Fulton v. Mehrenfeld, 8 Ohio St. 444, citing cases.
    
    We contend that the plaintiff in error waiting, until this late day, without attempting to prevent the execution of the work, is now estopped from raising any objections which existed in his knowledge the whole time; that he has acted in bad faith, and that, rather than allow him now to profit by his bad faith, the court will hold that he has impliedly authorized the city to do the work for him, as his agent, and is therefore liable for the assessment.
    But the court, will not be obliged to go to this extent, we think; for we apprehend that-the doctrine of estoppel will settle this case; and to this application of it the objection of counsel for plaintiff in error, that only parties and privies are estopped, will certainly not lie. Buckingham v. Smith, 10 Ohio, 288, 298; Fisher's Executors v. Mossman, 11 Ohio St. 47; Kellogg v. Ely, 15 Ohio St. 64; Forsyth v. The State, 6 Ohio, 20, 21.
    But if the court do not hold the plaintiff in error estopped by his actions, we submit that the points raised by the defendant below must both be ruled in our favor.
    We claim, 1st. That the act of the commissioners of the court, when approved by the court and confirmed by the parties taking possession under it, is good evidence of a common-law dedication, and conclusive upon them or their privies in estate.
    2d. That the statute in question was only intended to apply to, and does only apply to, statutory dedications, and therefore does not reach this case.
    3d. That it is wholly and entirely a statute for the benefit of the city; and that, when she waives it, no one else can set it up.
    4th. That there has been a substantial compliance with the statute.
    
      Fulton v. Mehrenfeld, 8 Ohio St. 440; S. & C. Stat. 896, sec. 5; Moore v. Robison, 6 Ohio St. 302; Burgett v Burgett, 1 Ohio, 468-480; Slater v. Cave, 3 Ohio St. 80, 85; Teaff v. Hewit, 3 Ohio St. 511, 543; Spicer v. Giselman, 15 Ohio, 338, 341; Terrill v. Auchauer, 14 Ohio St. 80, 87; The City of Milwaukie v. Davis, 6 Wisconsin, 387; The Mayor, &c., of New York v. Sheffield, 4 Wallace, 189; Trustees of Jordan v. Otis, 37 Barb. 50
   White, J.

The determination of this case depends upon whether Oeliler street, for the improvement of which the assessment is sought to be enforced, was a public street which the city council was authorized to improve.

The authority of the city to make the improvement is denied by the plaintiff in erroi\ on two grounds :

1. That there was no sufficient dedication of the street to public use.

2. That if the dedication was otherwise sufficient, there was no acceptance by the city, as required by sec. 63 of the municipal corporation act. 2 S. & C. stat. 1514.

In this State a dedication of ground may be made to public use, either in the mode prescribed by statute, or according to the rules of the common law. In the former case the dedication is effected, under the operation of the statute, by way of grant; in the latter case, as was said in Fulton v. Mehrenfeld (8 Ohio St. 440), it generally operates by way of estoppel.

The dedication in this case was not made in conformity to the statute, and the question, therefore, is whether, in the absence of statutory prohibition, it would constitute a good dedication at common law.

The parcel of lands of which the lot of the plaintiff in error formed a part at the time of tne partition, consisted of a tract fronting two hundred feet on Freeman street, and extending westwardly between parallel lines seven hundred and sixty feet. The commissioners, in making pai'tition of this tract, laid out the street in question through the entire length, and the ground abutting on each side of the street so laid out they subdivided into lots. In their report, which was confirmed by the court, they declare that they dedicate and set apart for the public use forever hereafter, the streets, yoads, and alleys as laid down and designated on said plat, and for no other use whatever.”

The parties took possession of their respective allotments, under the partition thus made, and the plaintiff in error derives his title under these proceedings.

It is clear that the parties to the partition and their privies as between themselves, while the partition subsisted, would be estopped from questioning the existence of the street; and, after they had allowed the city to take possession of and improve it, the estoppel, in our opinion, would become equally effective between them and the city.

The second question is, whether the improvement and control of the street assumed by the city was prohibited by section 63 of the municipal corporation act above referred to.

By section 26, of that act, general power is conferred on the city to layoff, open, extend, and establish, and to improve and keep in order and repair streets; and, to defray the expenses, it is authorized to assess and collect a charge on the abutting lots. In the execution of the power to provide streets, the city is authorized, when deemed necessary, to condemn private property; and under the general power thus given, it might, with the consent of the owner, take possession of and so use the property without condemnation. But it is claimed a limitation upon this power of the city is found in section 63. That section is as follows:

The city council shall have the care, supervision, and control of all public highways, bridges, streets, alleys, ¡mblic squares and commons within the city, and shall cause the same to be kept open, and in repair, and free from nuisances. No street or alley, which shall hereafter be dedicated to public use by the proprietor of ground in any city, shall be deemed a public street or alley, or to be under the care or control of the city council, unless the dedication shall be accepted and confirmed by an ordinance specially passed for the purpose.”

To understand the object intended by the adoption of this section, it is necessary to notice the statute in force at the time, prescribing the mode to be observed in laying out lots in cities and in dedicating grounds for streets and other public uses. The act then in force was that of March 3, 1831. (2 S. & C. Stat. 1482.)

By the 6th section it was provided, that the recorded plat made and acknowledged by the proprietor in conformity vith the act, should be a sufficient conveyance to vest the fee of the lands therein set forth aud described for streets, alleys, ways, commons, or other public uses, in the city, or town corporate, to be held in trust for the uses and purposes so set forth.

By this statute, proprietors laying out ground, within the limits of the corporation, into lots, were authorized to vest in the corporation, without its consent, the title to such streets and alleys as they chose to lay out, and thus charge the corporate authorities with the duty of keeping them open and in repair.

The object of section 63 was to prevent this charge from being imposed on the corporation without its unequivocal consent, which the section, to avoid all uncertainty as to the fact, requires to be manifested by an ordinance specially pa desosftrh e purpose.

The section was not intended as a limitation upon the general power of the corporation in regard to opening and improving streets, but as a restriction of the power possessed by others of imposing burdens and responsibilities on the corporation.

In this case, the ordinance passed by the city council recognized the street by name, and ordered its improvment as a public way. The passage of the ordinance and the making of the improvement was necessarily an acceptance or adoption of the street by the city ; and the right of the city to its care, supervision, and control is not impaired by the section referred to.

In regard to the written admission introduced in evidence by the defendant, it may be remarked that it is to be read and understood in connection with, and in the light of, the other admitted facts of the- case. The statement as to the non-acceptance by the city of the dedication, can only mean that the dedication had not been accepted by “ an ordinance specially passed for such purpose” in the form required by section 63; and that it had not otherwise been accepted than as shown by the ordinances and action of the city council then before the court, and which were undisputed. And it is proper to say that the counsel of the plaintiff in error, in argument, claim for the admission no broader meaning.

Judgment affirmed.

Beinkeehoee, C.J., and Scott, Welch, and Day, JJ., concurred.  