# Cincinnati v. Lessee of White

Supreme Court of the United States
31 U.S. 431
THE PRESIDENT, RECORDER AND TRUSTEES OF THE CITY OF CINCINNATI, PLAINTIFFS IN ERROR v. THE LESSEE OF EDWARD WHITE, DEFENDANT IN ERROR
Writ of Error to the Circuit Court of the District of Ohio
Argued: Feb. 8–11, 1832. --- Decided: Feb. 28, 1832.
The equitable owners of a tract of land on the river Ohio (the legal title to which was granted to John Cleves Symmes, from whom they had purchased the land before the emanation of the patent from the United States) proceeded in January 1789 to lay out on part of the said tract a town, now the city of Cincinnati. A plan was made and approved of by all the eqtitable proprietors, and according to which the ground lying between Front street and the river was set apart as a common, for the use and benefit of the town forever, reserving only the right of a ferry; and no lots were laid out on the land thus dedicated as a common. Afterwards, the legal title to the lands became vested in the plaintiff in this ejectment, who, under the same, sought to recovdr the premises so dedicated to public uses. Held: that the right of the public to use the common in Cincinnati must rest on the same principles as the right to use the streets; and that the dedication made when the town was laid out, gave a valid and indefeasible title to the city of Cincinnati.
Dedications of land for public purposes have frequently come under the consideration of this court, and the objections which have been raised against their validity, have been, the want of a grantee competent to take the title; applying to them the same rule which prevails in private grants, that there must be a grantee as well as a grantor. But that is not the light in which this court has considered such dedications for public use. The law applies to them rules adapted to the nature and circumstances of the case, and to carry into execution the intention and object of the grantor, and secure to the public the benefit held out and expected to be derived from and enjoyed by the dedication.
There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of he owner of the land, and the fact of its being used for the public purposes intended by the appropriation.
Although the dedications of land for charitable and religious purposes, which it is admitted are valid without any grantee to whom the fee could be conveyed, are the cases which most frequently occur, and are to be found in the books; it is not perceived how any well grounded distinction can be made between such cases, and the case of a dedication of land for the use of the city of Cincinnati. The same necessity exists in the one case as in the other, for the purpose of effecting the object intended. The principle, if well founded in the law, must have a general application to all appropriations and dedications for public uses, when there is no grantee in esse to take the fee. But this forms an exception to the rule applicable to private grants, and grows out of the necessity of the case.
In this class of cases there may be instances where, contrary to the general rule, a fee may remain in abeyance until there is a grantee capable of taking, when the object and purpose of the appropriation look to a future grantee in which the fee is to vest. But the validity of the dedication does not depend on this: it will preclude the party making the appropriation from re-asserting any right [p432] over the land; at all events, so long as it remains in public use, although there may never arise any grantee capable of taking the fee.
The doctrine of the law relative to the appropriation of land for public highways, was applied to a public spring of water for public use in the case of M'Connell v. The Trustees of the Town of Lexington, 12 Wheat. 582.
All public dedications must be considered with reference to the use for which they are made; and streets in a town or city may require a more enlarged use of the land, it order to carry into effect the purposes intended, than may be necessary in an appropriation for a highway in the country. But the principle, so far as respects the right of the original owner to disturb the use, must rest on the same ground in both cases; and applies equally to the dedication of the common as to the streets. This was for the public use, and the convenience and accommodation of the inhabitants of Cincinnati; and doubtless greatly enhanced the value of the private property adjoining this common, and thereby compensated the owners for the land thus thrown out as public ground.
And after being thus set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication. It is a violation of good faith to the public, and to those who have acquired private property with a view to the enjoyment of the use thus publicly granted.
If the mere naked fee is in the plaintiff in ejectment, it by no means follows that he is entitled to recover possession of the land in his action. The action of ejectment is a possessory action, and the plaintiff, to entitle himself to recover, must have the right of possession; and whatever takes away this right of possession, will deprive him of the remedy by ejectment.
THIS was a writ of error, to the circuit court of the district of Ohio.
The case came before the court on a bill of exceptions, taken by the plaintiffs in error, the defendants in the circuit court, to the instructions given by the court to the jury on the request of the counsel for the plaintiffs in that court; and to the refusal of the court to give certain instructions as prayed for by the defendants below.
In the opinion of the court no decision is given on those exceptions, save only on that which presented the question of the dedication of the land in controversy for the use of the city of Cincinnati; which, and the facts of the case connected therewith, are fully stated in the opinion of the court. The arguments of the counsel in the case, on the matters of law presented by the exceptions, are therefore necessarily omitted.
The case was argued by Mr Storer and Mr Webster, for the plaintiffs in error; and by Mr Ewing and Mr Clay, for the defendants.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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