Sherwood, P. J.
The plaintiff claiming ownership by quitclaim deed from Mrs. Carr of strips of ground, marked on the plat “Kosciusko” street and the two ‘alleys,” fenced in said strips,' whereupon the defendant city, through its marshal, Neiser, went about to tear down the fences obstructing the street and alleys, when plaintiff applied for, and obtained, a temporary injunction, which, upon final hearing, was dissolved; hence, this appeal.
In 1859, Mrs. Dorcas Carr, being then the owner of a tract of ground extending from Carondelet avenue (now Broadway) eastward to the Mississippi river, caused a plat thereof to be made, subdividing the same into city blocks, streets and alleys, and caused said plats [622]*622to be filed in the office of the recorder of deeds for the ■county, now city of St. Louis, but, through inadvertence or neglect, failed to attach thereto the acknowledgment required by the statute.
Following the filing of this plat, and in the same year, 1859, Mrs. Dorcas Carr offered by advertisement •all the ground, so platted, for sale at public auction, naming the day and the hour. At the corners of the “lots” in the “blocks,” as platted and designated by her, were placed small flags, designating the boundaries of the “lots” proposed to be sold, and the parts of the plat indicated as streets and alleys were staked off and the points indicated by stones. A number of “lots” •were sold at this auction, eastward from Carondelet avenue (now Broadway), down to Second street (now DeKalb street), and lots 1 and 2 east of said Second street, which were sold to one Henry Sharpen-berg, and now owned by one Henry Christian. The auctioneer, in crying out the sale, described the property, “This is a corner lot;” “This is a strip sixty feet wide;” “This property lies on an alley seven and a half feet wide,” and so on, with each parcel offered and sold.
The property was not all sold at that time. Aftei the war, Mrs. Dorcas Carr, acting through her real-estate agents, Messrs. Carr and Kerr, had another public auction sale of the unsold property so platted off. Circulars were printed and issued containing copies, of the recorded plat, and át this sale lots were sold by reference to the description contained in the plat, as for instance lot number 2 in block 4 of Dorcas Carr’s ■continuation of Rock Point addition as per records (so ■and so) as filed in the recorder’s office. When the first sale was made (in 1859) there were no numbered city blocks, and at both sales the description of property in the deeds referred to this plat. At the second sale, [623]*623which occurred, it seems, in 1866 or 1867, boards were put up on the property to be sold, and the boundaries of the lots were all marked by flags at each corner; they were so marked in front of the lots, and the sales were made accordingly. At this sale* there was no property sold east of Second street (now 'DeKalb). Later on, the property east of DeKalb street (formerly Second street) was sold, some to Henry Christian and some tc¡ John O. G-meiner (who afterwards conveyed to Heitz, the plaintiff herein), and in these deeds the boundaries were by the streets and alleys as platted.
In 1887, the plaintiff, through his agent G-ehner, began negotiations with O. Bent Carr, the son and agent of Mrs. Dorcas Carr, and told him that Kosciusko street and the two alleys had never been dedicated. Mr. Carr said it must be a mistake; when Mr. Gehner assured him he was positive of it, Mr. Carr replied: “Mr. Gehner, we have sold all that property down there, and we have bounded the lots by those streets and alleys, and there is one thing certain that my mother does not claim any of those streets and alleys, because, in making those deeds we had always bounded the lots by those streets and alleys, designating them lot so and so, bounded so and so.”
Gehner, for the plaintiff, offered to Mrs. Carr’s son and agent $200 for a quitclaim to Kosciusko street, who, on being advised by his attorney, Mr. Haeussler, that if the parties chose to take a deed from Mrs. Carr for what she did not own, it was all right, and which fact was so declared to Mr. Heitz, when the deed was made. In that deed the property is described as “Kosciusko street,” and as “alleys,” etc.
There was some evidence tending to show the use of a portion of Kosciusko street by the public, the particular portion now in controversy, and similar testimony was given as to the alleys, and that the use of [624]*624Kosciusko street was not discontinued until 1882 or 1883, and there was some testimony of a contrary effect. There was also testimony as to the acquiescence of Mrs. Carr in the use of the street and alleys. -
OPINION.
In the circumstances detailed in the foregoing statement, must the streets and alleys, as platted, be regarded as dedicated to the public use, is the controlling question in this cause.
I. Though the plat was unacknowledged, yet it was recorded, and the deeds which were made to different purchasers recognized and referred to the plat thus made, and in the sales which occurred at public auction, and which were subsequently consummated by such deeds, full recognition was given to such streets and alleys as public thoroughfares. This must be regarded as a valid common-law dedication; for when an incomplete or defective statutory dedication is accepted by the public, or when rights are acquired under such dedication by third persons, such acquisitions will operate in favor of the public and of such acquirers respectively, and constitute a dedication of the nature just mentioned. 2 Dillon on Municipal Corporations [4 Ed. ] sec. 628. And the right which thus passes to purchasers of lots of a platted town inures not only to the benefit of such purchasers, but it inures to the benefit of all persons who may have occasion to use the streets thus laid down in the plat; the sale and conveyance of the lots in the town according to its plan carry with them a grant or covenant that the streets indicated on the plan shall be forever open to the use of the public. Zearing v. Raber, 74 Ill. 409, and cases cited. This is especially true where, as here, the streets and alleys are used by the public, or being platted are ready for public use, whenever they [625]*625are put iu the proper shape for such use by the municipal authorities. In this case, however, long before the purchases made by the plaintiff and those under whom he claims, Dorcas street had been fully improved by the city, and in doing so it left the opening to Kosciusko street clearly marked by curbstones set for that purpose. And a portion of Kosciusko street was actually used by the public for the purposes of travel. The fact that a portion of that street, owing to the nature of the ground, was not capable of being traveled, militates nothing against the idea of acceptance by the public, and user by the public.
Besides, the city by accepting, building and using Dorcas street as platted must be regarded as an acceptance by the city of the whole tract platted, and not as a bare acceptance of such portion of the platted district as the city chose to improve, and did improve.
The main thing to be determined in cases of this sort to the intention to dedicate, and, where this is unequivocally manifested, the dedication, is complete; no user for any definite period by the public is necessary.
An English judge says: “No particular time, is necessary for evidence of a dedication.
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Sherwood, P. J.
The plaintiff claiming ownership by quitclaim deed from Mrs. Carr of strips of ground, marked on the plat “Kosciusko” street and the two ‘alleys,” fenced in said strips,' whereupon the defendant city, through its marshal, Neiser, went about to tear down the fences obstructing the street and alleys, when plaintiff applied for, and obtained, a temporary injunction, which, upon final hearing, was dissolved; hence, this appeal.
In 1859, Mrs. Dorcas Carr, being then the owner of a tract of ground extending from Carondelet avenue (now Broadway) eastward to the Mississippi river, caused a plat thereof to be made, subdividing the same into city blocks, streets and alleys, and caused said plats [622]*622to be filed in the office of the recorder of deeds for the ■county, now city of St. Louis, but, through inadvertence or neglect, failed to attach thereto the acknowledgment required by the statute.
Following the filing of this plat, and in the same year, 1859, Mrs. Dorcas Carr offered by advertisement •all the ground, so platted, for sale at public auction, naming the day and the hour. At the corners of the “lots” in the “blocks,” as platted and designated by her, were placed small flags, designating the boundaries of the “lots” proposed to be sold, and the parts of the plat indicated as streets and alleys were staked off and the points indicated by stones. A number of “lots” •were sold at this auction, eastward from Carondelet avenue (now Broadway), down to Second street (now DeKalb street), and lots 1 and 2 east of said Second street, which were sold to one Henry Sharpen-berg, and now owned by one Henry Christian. The auctioneer, in crying out the sale, described the property, “This is a corner lot;” “This is a strip sixty feet wide;” “This property lies on an alley seven and a half feet wide,” and so on, with each parcel offered and sold.
The property was not all sold at that time. Aftei the war, Mrs. Dorcas Carr, acting through her real-estate agents, Messrs. Carr and Kerr, had another public auction sale of the unsold property so platted off. Circulars were printed and issued containing copies, of the recorded plat, and át this sale lots were sold by reference to the description contained in the plat, as for instance lot number 2 in block 4 of Dorcas Carr’s ■continuation of Rock Point addition as per records (so ■and so) as filed in the recorder’s office. When the first sale was made (in 1859) there were no numbered city blocks, and at both sales the description of property in the deeds referred to this plat. At the second sale, [623]*623which occurred, it seems, in 1866 or 1867, boards were put up on the property to be sold, and the boundaries of the lots were all marked by flags at each corner; they were so marked in front of the lots, and the sales were made accordingly. At this sale* there was no property sold east of Second street (now 'DeKalb). Later on, the property east of DeKalb street (formerly Second street) was sold, some to Henry Christian and some tc¡ John O. G-meiner (who afterwards conveyed to Heitz, the plaintiff herein), and in these deeds the boundaries were by the streets and alleys as platted.
In 1887, the plaintiff, through his agent G-ehner, began negotiations with O. Bent Carr, the son and agent of Mrs. Dorcas Carr, and told him that Kosciusko street and the two alleys had never been dedicated. Mr. Carr said it must be a mistake; when Mr. Gehner assured him he was positive of it, Mr. Carr replied: “Mr. Gehner, we have sold all that property down there, and we have bounded the lots by those streets and alleys, and there is one thing certain that my mother does not claim any of those streets and alleys, because, in making those deeds we had always bounded the lots by those streets and alleys, designating them lot so and so, bounded so and so.”
Gehner, for the plaintiff, offered to Mrs. Carr’s son and agent $200 for a quitclaim to Kosciusko street, who, on being advised by his attorney, Mr. Haeussler, that if the parties chose to take a deed from Mrs. Carr for what she did not own, it was all right, and which fact was so declared to Mr. Heitz, when the deed was made. In that deed the property is described as “Kosciusko street,” and as “alleys,” etc.
There was some evidence tending to show the use of a portion of Kosciusko street by the public, the particular portion now in controversy, and similar testimony was given as to the alleys, and that the use of [624]*624Kosciusko street was not discontinued until 1882 or 1883, and there was some testimony of a contrary effect. There was also testimony as to the acquiescence of Mrs. Carr in the use of the street and alleys. -
OPINION.
In the circumstances detailed in the foregoing statement, must the streets and alleys, as platted, be regarded as dedicated to the public use, is the controlling question in this cause.
I. Though the plat was unacknowledged, yet it was recorded, and the deeds which were made to different purchasers recognized and referred to the plat thus made, and in the sales which occurred at public auction, and which were subsequently consummated by such deeds, full recognition was given to such streets and alleys as public thoroughfares. This must be regarded as a valid common-law dedication; for when an incomplete or defective statutory dedication is accepted by the public, or when rights are acquired under such dedication by third persons, such acquisitions will operate in favor of the public and of such acquirers respectively, and constitute a dedication of the nature just mentioned. 2 Dillon on Municipal Corporations [4 Ed. ] sec. 628. And the right which thus passes to purchasers of lots of a platted town inures not only to the benefit of such purchasers, but it inures to the benefit of all persons who may have occasion to use the streets thus laid down in the plat; the sale and conveyance of the lots in the town according to its plan carry with them a grant or covenant that the streets indicated on the plan shall be forever open to the use of the public. Zearing v. Raber, 74 Ill. 409, and cases cited. This is especially true where, as here, the streets and alleys are used by the public, or being platted are ready for public use, whenever they [625]*625are put iu the proper shape for such use by the municipal authorities. In this case, however, long before the purchases made by the plaintiff and those under whom he claims, Dorcas street had been fully improved by the city, and in doing so it left the opening to Kosciusko street clearly marked by curbstones set for that purpose. And a portion of Kosciusko street was actually used by the public for the purposes of travel. The fact that a portion of that street, owing to the nature of the ground, was not capable of being traveled, militates nothing against the idea of acceptance by the public, and user by the public.
Besides, the city by accepting, building and using Dorcas street as platted must be regarded as an acceptance by the city of the whole tract platted, and not as a bare acceptance of such portion of the platted district as the city chose to improve, and did improve.
The main thing to be determined in cases of this sort to the intention to dedicate, and, where this is unequivocally manifested, the dedication, is complete; no user for any definite period by the public is necessary.
An English judge says: “No particular time, is necessary for evidence of a dedication. * * * If the act of dedication be unequivocal, it may take place immediately; for instance, if a man build a double row of houses opening into an ancient street at each' end, making a street, and sells or lets the houses, that is instantly a highway.” Woodyer v. Hadden, 5 Taunt. 126; per Chambre, J., 2 Smith’s Leading Case [8 Ed.] 176.
“AYhile a mere survey of land, by the owner, into lots, streets, etc., will not, without a sale, amount to a dedication, yet a sale of lots with reference to such flat, or describing lots as bounded by streets, will, as [626]*626between the grantor and grantee amount to an immediate and irrevocable dedication of the streets, binding upon both vendor and vendee.” 2 Dillon on Municipal Corporations, sec. 640.
It is a familiar doctrine in our own reports showing that, in order to constitute a street or alley! in a municipal corporation, it is by no means necessary that the statutory course should be pursued. Rose v. St. Charles, 49 Mo. 509; Baker v. Vanderburg, 99 Mo. 378. And, when the circumstances of dedication and acceptance are similar to those this record presents, the owner as well as all claiming under him are precluded from asserting any right or ownership inconsistent with the public use embraced by such dedication. Pierce v. Chamberlain, 82 Mo. 618.
Nor for this reason could the quitclaim deed made by Mrs. Carr which purported to convey Kosciusko street and the alley to plaintiff operate as a revocation of her previous dedication; that act was irrevocable. Brown v. Stark, 83 Cal. 636; Hicklin v. McClear, 18 Or. 126; Harrison Co. v. Seal, 5 S. Rep. 622.
II. Now as to the right of the plaintiff to invoke the aid of a court of equity in restraining the defendant city from removing his fences. If the street had become by reason of the dedication, etc., a public street, then the right of the municipal authorities to protect that street from obstructions to prevent or remove such obstructions by judicial proceeding, must be conceded. 2 Dillon on Municipal Corporations, sec. 659.
Here, it is true, the city did not resort to such steps, but that a court of equity will interfere to prevent wrongs of the character done by the plaintiff, is very clear. Zearing v. Raber, supra, and cases cited.
This being the case, a party plaintiff cannot successfully invoke the powers of a court of equity to restrain a defendant from removing an obstruction [627]*627which, upon proper application by his adversary, he would be compelled to remove or else be enjoined from maintaining. Therefore, judgment affirmed.
All concur, except Barclay, J., not sitting.