Doren v. Horton

1 Disney (Ohio) 401

• Court: Ohio Superior Court, Cincinnati
• Decided: June 15, 1857
• Status: Published

Opinion

Gholson, J.

Where a person makes a subdivision of city lots, showing streets and alleys, and without acknowledging it as required by statute, causes it to be placed upon the public records of the county, and afterward sells and conveys lots according, to the numbers of the subdivision, which lots, as shown on the plat by the numbers, are bounded by a street, or alley, I hold

1. That the fee in the street or alley did not vest under the statute in the city, the plat not having' been acknowledged.

2. That such acts on the part of an owner were sufficient evidence of an intention to dedicate the streets and alleys-for public use.

3. That if such dedication was. accepted by tbe city, or by user on the part of the public,, it would become c'omplete;. and the owner would have no> right to appropriate the ground, over which the street or alley passed, to his private use and possession; and if such, street or alley,.- after such acceptance or public user was. wrongfully obstructed, the owner or his assignee would have no better right to recover possession by action of ejectment, or a proceeding of like character, than any other person interested.'

4. That an alienee of a lot in such subdivision bounded on a street or alley, the, street or alley being open and unobstructed at the time of his conveyance, acquires a right of using, which is analogous to that of the public, and can not be taken away or reduced to the possession of the original owner without his consent. One of the alienees of two such lots, the alley lying between, can not under a deed, from the original owner, obtain exclusive possession of such alley.

5. If a man conveys two lots, with an alley between to be used as such by the owners of the two lots and their assigns, he can never, as against such owners, or either of them, take into his private and exclusive possession the ground over which the alley passes; and can convey no such right to the owner of one of the lots. No such right is acquired by the fact that one or both of the owners have or are obstructing the alley.

6. It is the right of those showing an interest either in a private or public alley, which has been wrongfully obstructed, to require that the obstruction be discontinued. This has been usually accomplished by an action at law for the nuisance, or by an injunction in equity. But the obstruction or misuse of an alley does not forfeit it, so as to give a title to the original proprietor.

These principles are settled by numerous authorities. 6 Ohio, 298, Brown v. Manning; Wright, 749, Morris v. Bowers; 6 Peters, 432, Cincinnati v. White; Id. 507, Barclay v. Howell; 1 Ohio St. 478, Williams v. First Fresb. Soc. of Cincinnati; 35 Maine, 161, Cole v. Sprowl; 12 Georgia, 239, City of Macon v. Franklin; 11 B. Monroe, 155, Wickliffe v. City of Lexington; 2 Selden, 257, City of Oswego v. Oswego Canal Co.; 1 Spencer, 86, Dummer ads. Jersey City.

The only ground upon which a recovery could be claimed would be as trustee, for the purpose of effectuating the trust. Such a purpose is not claimed and under our present system, must appear.

Under the facts and circumstances in this case, and it is questionable whether the fee in the alley would properly be considered as remaining in the original proprietor, if not vested in the city, it may be in. the adjoining proprietors. This would depend on the question whether the dedication was complete of a public alley.' A dedication of-an alley was intended; not a mere easement. Was it accepted? This acceptance would depend on the character of the thing and the use naturally to follow. Wright, 749; 14 Barb. 328, Badeau v. Mead, et al; 16 Barb. 251, Clements v. West Troy.

Judgment for defendant, and ordering plaintiff to remove obstructions, as prayed by defendant.