
    Stephenson v. Incorporated Village of Leesburgh.
    Where, in an action by an incorporated town to recover possession of certain streets and alleys, the petition set forth the plat of the town, and facts to constitute a legal establishment of the town and the dedication of the streets and alleys in question to the public use; also other facts pertaining to the case; and the answer admitted that the town had been laid out and established, but denied that the plat set forth in the petition was a correct one, and denied all the other allegations in the petition: Held, 1. That in admitting that the town was laid out and established, there being no specific denials to the contrary, the answer admitted all the facts averred n the petition which were essential to the legal establishment of the town and the dedication of its streets to the public. 2. The general denial applies only to the averments not included in such admission. 3. Upon the issue of the correctness of the plat in question, the record, of the plat made in the recorder’s office of the proper eouniy, which was conceded to be the only record of the plat of the town ever made, was admissible evidence. 4. The recorded plat being correct, and the dedication thereby effected having been acquiesced in more than sixty years, in connection with the other facts admitted, warranted the court in charging the jury that the plat was sufficient evidence of a dedication of the streets and alleys therein des? ignated, and sufficient to confer upon the town a right to the alley in question, and that the same was of the width specified in the plat.
    Error to tbe District Court of Carroll county.
    In tbe action below, tbe village was plaintiff and Stephenson defendant. Tbe action was brought, March 17, 1874, to recover possession of a street and an alley. Tbe petition, so far as material, was as follows;
    “ Tbe plaintiff' says:
    “ 1. The said plaintiff is an incorporated village in the county of Carrol, and State of Ohio, duly organized under tbe laws of said state.
    “ 2. The said village was laid out in the year 1812, by Thomas Price and Peter Saunders, who were the legal owners of the land on which said village was laid out; that the said Peter Saunders owned the land hereinafter described in the year 1812, and in that year laid out said town on the.land hereinafter described, and dedicated and established certain streets and alleys — a full plat thereof, fully describing the same, is hereto attached and made a part of this petition, marked £A.’
    3. That the ground between lots numbered 93 and 92, and between 100 and 101 on said original plat, situated in said village, being sixteen and one half feet wide, and one hundred and thirty-two feet in length, was, by said Peter Saunders, duly laid out in an alley, and donated to the use of said village and to the public, as an alley; and also the ground seventy-four and one-half feet wide on the north of said lots 93 and 100 to the same as a street.”
    The petition contains four other separately numbered paragraphs, stating other facts relating to the case.
    The answer, so far as material, was as follows:
    
      “ The defendant, for answer to the petition of the plaintiff in this case, says that he does not know whether the plaintiff is an incorporated village in the county of Carroll, Ohio, and, therefore, denies that said plaintiff is an incorporated village. And defendant admits that the village of Leesburgh, in said county of Carroll, was laid out and established, and that certain streets and alleys were described therein, but whether the plat marked ‘A’ is a correct survey of said village, as stated in the petition, the defendant does not know, and, therefore, denies that the same is a correct plat and survey. And defendant denies all and singular the other allegations contained in the said petition.”
    It appeared on the trial that, on March 14,1836, the legislature passed an act, the first section of which is as follows, viz.:
    “ That so much of the township of Orange, in the county of Carroll, as is comprised in the original town-plat of the town of" Leesburgh and addition, together with all such additions as may hereafter be made thereto and recorded, be, and the same is, hereby created a town corporate, and shall hereafter be known by the name of the town of Lees-burgh.”
    
      The plaintiff also offered in evidence a record of town-plats of the county of Carroll, and to exhibit to the jury a plat of the town of Leeshurgh in said county, with the lots platted and numbered thereon, also the street and alley mentioned in the petition, of the length and breadth as therein described; also to read the certificate attached thereto, showing that the town of Leeshurgh was founded in 1812, by Thomas Price and Peter Saunders by Daniel Black, his duly authorized attorney, and specifying the street and alley mentioned in the petition as being the same length and breadth as that therein described.
    To the plat and certificate were attached the following acknowledgment and certificates:
    
      “State of Ohio, Tuscaraioas county, ss.
    
    
      “ On the first day of August, in the year of our Lord one thousand eight hundred and twelve, personally appeared before me, a justice of the peace in and for said county, Thomas Price and Daniel Black agent for Peter Saunders, proprietors of the town of Leeshurgh, and severally acknowledged the above plat to be a true and accurate map of the the said town above stated.
    “ Given under my hand and seal the day and year above written.
    “ John Butterfield, Justice of the Peace.
    
    
      “ Received August 1,1812, and recorded August 11,1812. “ Attest :
    “ James Clark, Recorder.”
    
    The court, among other instructions, charged the jury as follows:
    “ The above plat and acknowledgment so found in record No. 1 of the records of Carroll county aforesaid, taken in connection with an act passed by the legislature of Ohio, March 14, a. d. 1886, for the incorporation of the town of Leeshurgh, Ohio, in connection with the fact admitted that there was no other recorded plat of said town, and no other town of Leeshurgh in Carroll county, Ohio, was evidence sufficient of a dedication of the streets and alleys, together with the width of the same as alleged in the petition — a copj^ of which such act of incorporation is hereto attached —and that the same was sufficient to confer upon the town of Leesburgh, Ohio, the right to Church alley, and that the same was sixteen and one-half feet wide, to which instruction the defendant excepted.”
    Verdict and judgment were rendered in favor of the village. On error in the district court the judgment of the common pleas was affirmed. To reverse these judgments this petition in error is prosecuted.
    The errors assigned are : 1. That the court erred in admitting the record of the town-plat in evidence. 2. That the court erred in its charge to the jury.
    
      John U. Tripp, and S. M. Graine, for plaintiff in error:
    I. The plat recorded and allowed in evidence was not such a plat as was authorized by the statutes in force in 1812, to be recorded — because, 1. It was not acknowledged by the proprietors of the land ; 2. If the words certified by the justice of the peace are an acknowledgment, under the statute, such acknowledgment is Daniel Black’s; 3. If the words are a proper acknowledgment, the acknowledgment was not certified by the justice of the peace under his seal. 1 Chase’s Stat. 502, §§ 1, 2.
    The record of a town-plat, not executed and acknowledged in pursuance of the statute, is not evidence. Satchell v. Doran, 4 Ohio St. 542; Incorporated Village of Fulton v. Mehrenfield, 8 Ohio .St. 440; Incorporated Village of Lockland v. Smiley, 26 Ohio St. 94.
    II. The record was no evidence of the original town-plat. If it were, the act of incorporation can not be construed as intending to regulate the width of its streets and alleys; it only purports to make a certain piece of land a town corporate.
    But, if the act did legalize a defective town-plat, other evidence was necessary to establish the right of the plaintiff. Proof was necessary to show that Peter Saunders was the proprietor of the land in 1812, and that Daniel Black was his agent, authorized for the purpose of dedicating the land.
    
      Shober & Railey, for defendant in error:
    I. To the petition, the plaintiff in error answered, and in his answer admits “ that the village of Leesburgh, in said county of Carroll, was laid out and established, and that certain streets and alleys were described therein; ” but “whether the plat marked ‘A’ is a correct survey of said village, as stated in said petition, the defendant does not know, and therefore denies that the same is a correct plat and survey.” The case came on to be tried, and the main question was as to the width of Church alley, the defendant in error claiming it was sixteen and a' half feet wide, and the plaintiff in error claiming it was only twelve feet wide.
    II. It was admitted that there was no other recorded plat of said town than the one offered in evidence, and that there was no other town of Leesburgh in Carroll county, Ohio. And it appeared that the copy attached to the petition was identical with the recorded plat offered in evidence.
    Now, the question arises, under the said act of incorporation, and said admissions in his said answer: Could the plaintiff* in error insist on any technicalities in the acknowledgment and recording of the plat? "We think not. The act of the legislature of 1886, recognized and confirmed the plat of Leesbui’gh, as then recorded. The record acknowledged and recorded in 1812 showed “all the alleys, uniform sixteen and one-half'feet wide, crossing at right angles, as shown on the map.”
    III. The record shows that the plat was executed and acknowledged, in pursuance of the statute then in force. 1 Chase’s Stat. 502. The want of seal to the acknowledgment was cured by the statute of 1883. S. & C. 470.
    The cases cited by plaintiff in error are not in point. They relate to cases where there was no acknowledgment.
   Day, J.

The answer denied that the plaintiff below was incorporated; but the legislative act given in evidence established that fact.

The answer admitted that the village of Leesburgh, with its streets and alleys, was “ laid out and established,” but denied that the plat thereof, made part of the petition, was a “ correct ” plat. There being no specific denial of the averments in the petition relating to the due and legal dedication of the streets and alleys to the public use, this admission, in effect, conceded all that was essential to the legal dedication of the town of Leesburgh, including its streets and alleys ; for it could not be “ established” without a legal dedication. The issue taken was only as to the correctness of the plat. The general denial in the answer must relate to the other facts of the petition not included in those necessary to the laying out and establishment of the town.

The act of February 14,1805 (Chase’s Stat. 502), in force when the town was established, required the proprietors of the town to have an accurate plat thereof made, acknowledged, and recorded; and the act devotes the streets and alleys so designated to the public use. The making, acknowledging, and recording of the plat, as well as the proprietorship of the town, were all essential to the legal establishment of the town; and that fact being admitted, there being no direct denials to the contrary, necessarily included them all in the admission.

The issue being only as to whether the plat in question was a “ correct” one of the town in fact “ established,” the record, being the statutory evidence of the plat, and being the only record thereof ever made, was admissible evidence upon that issue. There being no other recorded plat, it must be correct,” and must, therefore, be sufficient evidence to establish both the correctness of the plat and the width of the alley, which seems to have been the matter in controf'ersy,

This plat and dedication of the town, with its streets and alleys, having remained undisputed for more than sixty years, in connection with the admitted facts, clearly warranted the charge given by the court to the jury.

This, iii the view we have taken of the case, disposes of all the questions necessarily involved in it.

Judgment affirmed.  