
    The Incorporated Village of Lockland v. John J. Smiley.
    The dedication of a street, as laid out on a town plat which is not executed in accordance with the statute, may, as against the corporation within which the land is situate, be revoked at any time before its acceptance by the corporation or by the public, notwithstanding lots laid out on the plat may have been sold; and a conveyance of the land in fee simple, by a deed of general warranty, operates, in law, as a revocation.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Hamilton county.
    The original petition was filed by Smiley, the defendant ■ in error, to enjoin the plaintiff in error, the incorporated village of Lockland, from entering upon certain premises within said village, of which Smiley was possessed, and from appropriating the same to public use as a street, without the consent of the plaintiff or compensation to him.
    The answer set up that the disputed tract constitutes part of what was formerly known as Mary street, now Shepherd avenue, and is as such part of a dedicated street, and within the control of the village authorities.
    The reply denies that the premises were ever dedicated to or used for public purposes.
    On the trial the District Court found in favor of Smiley, the plaintiff below, and entered a judgment perpetually enjoining the defendant below from interfering with his possession.
    A motion for a new trial having been overruled, a bill of exceptions was taken, embodying all the evidence.
    The bill of exceptions shows the following facts :
    On May 29, 1829, Lewis Howell and Nicholas Long-worth, being the owners of a tract of land on which the incorporated village of Lockland is now situated, caused a part of the tract to be laid out in the form of a town-plat, which plat they caused to be recorded, but the same was not acknowledged as required by the statute.
    On this plat one of the streets was designated as Mary street, running from north to south entirely across the plat, the northern terminus of the street as thus delineated being the section line.
    On March 7,1832, Howell conveyed to Longworth the undivided half of the entire tract they owned in common, and added to the description these words, “ on which tract the town of Lockland is laid out.” Prior to this conveyance by Howell, he and Longworth conveyed lot 47 as numbered on the plat, to one Spader. The location of this lot is not on Mary street, but at the corner of Eorrer and Benson streets.
    On January 31,1838, Longworth conveyed to John L. Yattier, by warranty deed, a strip of land one hundred feet wide off the north side of the lands included in the plat, but without any reference in the deed to the plat or to any street or alley.
    The extension of Mary street across this strip, as delineated on the plat, embraces the premises in dispute.
    Smiley derives title under Nattier, and, like the deed from Longworth to Nattier, none of the subsequent conveyances contain any reference to the plat or street.
    Mary street was never opened through this 100-foot strip,, and Smiley purchased without any notice of such street across said strip.
    Various deeds of conveyance were in evidence, showing that Smiley had both purchased and sold lots, as numbered on the plat, and which were described in the deeds as abutting on Mary street; but all of the lots thus described were south of the premises in dispute.
    Although Mary street, on the original plat, was laid out as extending across the 100-foot strip to the section line, yet no part of the 100 feet was laid out into lots; nor had any lots on the street been sold prior to the deed to Vattier,the only lot sold up to that time being lot number 47, befox’ereferred to.
    The present proceeding in error is prosecuted to obtain a.reversal of the judgment of the District Court.
    
      Uoadly, Johnson § Colston, for the motion:
    It is true that the town-plat is not in conformity to law, but it has been.acted upon for more than forty years, and therefox'e is equivalent in law to a duly executed town-plat.
    The record shows that Lewis Howell and Nicholas Long-worth owned the land covered by this plat when it was recorded in 1829, and that subsequently they conveyed cex-tain parcels of land, by deed, describing them by reference to the plat of the town of Lockland.
    These deeds operate as a complete and duly executed republication of the plat, and cux’e all defects in its execution. They certainly estop Longworth and all claiming under him against disputing any part of the plát. And as Smiley’s title to the disputed title begins by a conveyance from Longwortb to Yattier under whom Smiley claims., executed in 1838, it follows that Smiley is estopped. Angelí on Highways, sec. 149 ; Doren v. Horton, 1 Disney, 401; Bis-sell v. N. Y. G. R. R. Co., 26 Barb. 630; 1 ITill, 190; Godfrey v. City of Alton, 12 111. 30; 19 Wend. 128.
    The record also shows that Smiley has himself received and made deeds “ fronting on Mary street,” and thus estopped himself against disputing its legal existence and validity. Cases above cited, and 1 Greenleaf on Ev., sec. 23.
    Acceptance of the dedication by user is also fully shown. User of part is user of all, or at least as far as the nearest cross-street. Therefore the user of any part north of Benson street is the user in law of all of Mary street, or at least we may safely say that user north of the cross-alley, parallel with Benson street and 200 feet north of it, is in law user of all of'Mary street north of the cross-alley; and such user is fully shown, beginning within the period of prescription, and continuing to the present time. Clements v. West Troy, 10 How. Pr. 200; 1 Hill, 190; Simmons v. Cornell, 1 R. I. 523; Mayor of Jersey City v. Morris Canal Go., 1 Beasley, 547; Barclay v. HoioelVs Lessee, 6 Pet. 504; United States v. Chicago, 7 How. 185; Angelí on Highways, sec. 149.
    
      W. Cornell, contra:
    There was no statutory dedication of the town-plat. 1 Chase, 520; Satchel v. Doram, 4 Ohio St. 542; 8 Ohio St. 440.
    After recording the plat and before disposing of any lot abutting on Mary street, Longwortb sold the 100-foot strip in question, and the purchaser in 1838 took possession, and he and his grantors have ever since held possession of the property, and no user of any part of it by the public for a street has ever taken place.
    The recording of a plat not legally executed did not give the public any interest in the street. The recording of a defective paper does not give it any validity, as against a subsequent instrument conveying the same property, which is properly executed and' recorded. Johnson v. Haines, 2 Ohio, 55; White v. Denman, 16 Ohio, 59; Bloom v. Noggle, 4 Ohio St. 45.
    As to the effect of recording a plat not executed according to law, see United States v. Chicago, 7 How. 196; People v. Jackson, 7 Mich. 432; Busby v. Copeland, Wright, 150; 8 Ohio St. 440.
    When only a part of a street marked on a plat is used, it does not give the public any right to the part not used. A person by simply platting a street can not compel the public to accept it. Angelí on Highways, sec. 157, and ■cases cited.
    In this case the original proprietors of the land in controversy resumed possession thereof (if ever they had parted therewith) before any lots on Mary street were sold. That they could do so is clearly decided in White v. Cincinnati, •6 Pet. 440; Barclay v. Howell, lb. 498; 3 Kent, 444; 11 Ohio St. 274; 102 Mass. 297.
    If there ever was an intention, on the part of Howell and Longworth, to dedicate the premises in question to the public for a street, that intention was revoked, and the public excluded from the enjoyment thereof.
    Where a party makes a plat and sells lots by that plat such sale will be evidence of an intention to dedicate so much of the streets as are appurtenant to the lots sold. 7 How. 195, 196; Woodyear v. Hadden, 5 Taunton, 126; Washburn on Easements, 182; Smith v. The State, 3 Zabr. 712; Angelí on Highways, sec. 142; 8 Adol. & E. 99; 9 How. 33; Janes v. Dean, 3 Bing. 447; 1 Man. & G. 392 ■ Smith’s Lead. Oases (7 ed.), 154-157.
    Smiley is not estopped from denying a street, because he has sold land on Mary street. He had no deed for land on Mary street until 1843, five years after Longworth had •sold this 100-foot strip from the north side of his land. It •could make no sort of difference to those purchasing lots in Longworth’s subdivision whether Mary street extended to the north or south line of this 100-foot strip.
    It is admitted that Mary street extends to the south line of this strip. Smiley admits it, and until 1873 the authorities of Dockland claimed that it extended beyond that line. Both parties prior to that time admitted that Mary street ■extended to the south line of the 100-foot strip. The estoppel therefore is mutual. Bigelow on Estoppel, 558,568; Holdam v. Cold Springs, 21 N. Y. 474.
    A right of way may be abandoned, and the entire and ■exclusive property and right of enjoyment revest in the proprietor of the soil. Washburn on Easements and Serv. (2 ed.), 214.
    In this state, not opening a public highway for a period of seven years after its establishment, vacates the way. S. & C. 1296, sec. 38; 23 Barb. 103; 5 Taunt. 126.
   "White, J.

We see no error in the record. The controversy in the case, it is to be observed, arises between ■Smiley and the village as a corporation. The question in issue is, whether the land in dispute has been dedicated to public use as a part of Mary street ?

As the plat was not executed in accordance with the statute, it is clear there has been no statutory dedication. The only question, therefore, for determination is, whether there has been such a dedication of the premises, at common law, as will be effectual between the parties.

Smiley derives title under the conveyance from Long-worth to Yattier.

At the date of that conveyance there had been no acceptance of the proposed dedication either by the corporation or the public. It does not appear that the corporation was at that time in existence. Nor had there been any user of the premises in question as a street from which an acceptance by the public might be inferred.

The terms of the deéd to Yattier excluded the idea that the premises conveyed were subject to any such easement. The deed conveyed the premises in fee-simple, and contained covenants of warranty and against incumbrances And, without undertaking to consider what might have been the effect of actual notice, it may be remarked that we find nothing in the evidence from which Vattier is chargeable with such notice of the proposed dedication by the plat, for a street, of any part of the premises conveyed. The same may be said in regard to notice to Smiley, at the time of the conveyance of the premises in question to him.

It is, however, contended for the plaintiff in error, that Smiley is estopped from denying the existence of Mary street on the premises. The estoppel is supposed to arise on two grounds: 1. From the conveyance of lot 47 by Howell and Longworth to Spader, taken in connection with the recognition of the plat in the subsequent deed from Howell to Longworth; and, 2. From the several conveyances to and by Smiley, in which the lots conveyed were-described as abutting on Mary street, and as they are numbered on the plat.

The answer to the first of these positions is, that whatever may have been the individual rights of Spader and those claiming under him, it was competent for Longworth,. as against the corporation, to revoke the proposed dedication at any time before it had been accepted by the corporation or by the public. Such revocation was effected by his conveyance of the premises to Vattier ; and in none of the subsequent deeds of the land in dispute has there been any recognition of the street.

As to the second position assumed as a ground of estoppel, the conveyances, to and by Smiley, of the lots abutting on Mary street, it is sufficient to say that they were all made after the revocation effected by the deed of Long-worth to Vattier. And while it is admitted that the descriptions in these deeds estop the parties to them from questioning the existence of Mary street, as respects the property conveyed by such deeds, yet such estoppel certainly can not operate so as to include that part of the street, as laid out on the plat, the proposed dedication of which had been revoked at the time of the conveyances.

Leave refused.

McIlvaine, C. J., Welch, Res, and Gilmore, JJ., concurred.  