
    Baker vs. Johnston.
    B makes aud record** a village plat, designating certain premises as a “ public, square.”— Tlie acknowledgement was defective. Bote were sold with reference to the plat. Held' that this is a good dedication to the public use, and operative as a conveyance to the county in, trust for tlie designated purpose, though no grantee is mentioned. Such dedi cation is effectual against the land owner without formal conveyance to tlie county.
    The use of such dedicated-property by shows and the like, does not constitute a public acceptance of the dedication, but proof of improvements, such as fencing, clearing and ornamenting, would be competent as tending to show an acceptance.
    Error to Van Burén Circuit.
   Opinion by

Campbell, C. J.

Action below, trespass for breaking.close of Baker.

Defendant justified, claiming the premises were a public square.

In 1846,Baker made and caused to be recorded a plat of certain lands including the Village of Lawrence. The plat was not so certified as to become a valid recorded plat. Tlie premises in question were designated on the plat, “ Public Square.” Baker subsequently sold lots described by reference to the plat.

A question arose under the act of 1850, whether this has operated, to make the plat effectual as if it had been legally complete in the first place. The statute consists of two sections, both of which profess to be retrospective. The first in terms provides that where propriétors have platted lands and caused the plat to be recorded without the proper acknowledgement, and have sold and conveyed lands by reference to the recorded plat, it shall have the same . effect as if legally acknowledged and recorded. The second section provides that where, a plat has been'duly acknowledged, the record thereto made shall be evidence as against the makers of the sufficient dedication, gift and grant to the public of any portion thereof represented in such plat as a public ¡guare.

Meld, That it was not designed by either of these sections t° create a dedication of a public square by anything which did not operate, when made, as a complete conveyance in fee to the county of lands properly defined as intended for public purpo-ses. It was evidently considered that.a difference might exist in the legal conditions of lands destined for common highways and for other purposes, and that a dedication for one might not suffice for another.

It is well settled of course that land may be dedicated for use as a common highway without grant or covenant, but there seems to be no foundation for the idea that at common law, lands could be set apart by dedication for any other. purpose. The decisions in this country, however, have undoubtedly assumed that the mere want of a grantee would not defeat £v dedication of lands for well defined public purposes, likening them to charitable trusts, which will not always fail for lack of a trustee.— The utmost, however, which can be affirmed, is that where the purpose is clear and well defined, the courts will protect lands which have been dedicated to public uses, and which are so situated that the public purpose can be legitimately carried out.— The plat designating those grounds operated as a conveyance to the county in trust for the purposes designated.

Meld, That there is no difficulty in ascertaningin this case an original intent to have this land set apart for some public purpose. That the law here unquestionably is, that there may be a dedication effectual against the land owner, without a statutory and formal conveyance to the county. The plat here shows that the square was to be kept as a block separate from the adjacent streets and bounded by their exterior lines. And all the evidence negatives the idea of any other design. In this case no incorporation existed when the land was platted, and there was no certainty that the land would become an incorporated city or village within any reasonable time.

Held, That a public acceptance could not be made out by the testimony showing that the premises had been used by the inhabitants or by traveling showmen for purposes of amusement, as ball playing, circus performances, etc. Any vacant private property might be and is usually resorted to for such uses, and it is questionable whether an express dedication could be maintained for any such objeots. The use for agricultural fairs is repugnant rather than favorable to the idea of a public acceptance. Such a use is no way conducive to public ornament or to the embellishment of a village. So far as any of the proof offered in the case has any significance, it tends to show the purpose of dedication to create an ornamental park, which is now perhaps the most common purpose for which dedications of public spaces are devoted. And the only evidence of any joint action bearing upon the question of acceptance by any persons having a right as against Baker to claim as representing the public is to the same effect. It appears that some two or three years before Baker proposed to resume possession, á gathering of the villagers was had, at which arrangements were made for enclosing the square, and planting shade trees in it, which was done, money being raised for the purpose. This evidence should go to a jury, and, inasmuch as the rulings of the court below Were in conflict with the view of this Court, the judgment is set aside and a new trial granted.  