#### MORRIS *v.*BOWERS.

Town plats — acknowledgment of — dedication-—fee in public ground — streets of a town-supervisors.

A town plat íecortlecl, though not acknowledged, is good as a plat, and is evidence of a dedication of the streets and other public grounds to the public.

But the plat must be acknowledged and recorded, in order to pass the fee of such ground to the county, for the use intended.

The streets and alleys of a town are public highways.

It is the duly of a supervisor to remove obstructions in the highways, and if sued for it, he may show his character aud the extisence of the street in mitigation of damages.

Eb.uob. to the Court of Common Pleas. Bowers laid out the town of Montgomery. Morris, a supervisor of highways, pulled down Morris’ fences across the streets and alleys of the town, and opened them for public use. Bowers brought suit against him for the trespass in breaking his close — not guilty was pleaded with notice of the special matter to be given in evidence.' On trial, Bowers proved his occupancy of the land, and that Morris entered and pulled down his fences. The defendant then offered to prove the laying out of the town by the plaintiff, and that he sold the lots; that the defendant was a supervisor of highways, the town was in his district, and that he only removed the fences from the streets and alleys of the town, so as to open them for use, which was objected to and ruled out by the court. Morris then offered a copy of the plat of the town duly recorded, but not acknowledged, with a deed to himself of one of the lots, and also a copy of a second and later plat duly acknowledged and recorded, varying the plat, which was also objected to, and ruled out by the court. ’ It is assigned for error, that the court below erred in ruling out this evidence.

*Caldwell*and Irvin, for the plaintiff in error,

insisted the evidence should have been admitted. Bowers would be taking advantage of his own wrong, if admitted to defeat the public right by objecting *750his own neglect to acknowledge the plat of the town. The plat was good without acknowledgment to vest the use of the streets in the town, though an acknowledgment was necessary to pass the fee to' the county. The streets and alleys are public highways, and it is the duty of the supervisor to open them: (3 O. *R.*93; 22 *O. L.*315.)

Olds, contra,

insisted the first plat not admissible, because not acknowledged,'and the second plat, becaus.e it was made after the trespass. The deed and the proof about the roads were properly rejected, because not in issue.

Collett, C. J.

The act to provide for recording town plats, (22 *O. L.*301) in the first section, requires of proprietors of towns, before they sell, to have a plat thereof accurately made out for record, and the second section declares the map i shall particularly set forth and describe all the public ground within such town,by its boundaries, courses, and extent, and the lots intended for sale by progressive numbers, and their precise length and width.’ The law subjects the proprietor to a'penalty, if he sell before the plat is recorded, or record a plat which does not so describe the public ground, &c. and declares that when'the plat is so made, acknowledged, and recorded, it shall be deemed a conveyance vesting the fee in such public ground in the county within which the town is situated, in trust for the uses and purposes expressed, or intended to be.

The law does not declare a plat of a town not acknowledged, á nullity. It would be manifestly unjust to do so. The plat is made, recorded, and lots sold, bounded on *streets,*«fee. *the grantor should*not make his own act void, as a consequence of his own laches. The law does not so intend. If acknowledged and recorded, the fee of the public ground is vested in the county in trust, to prevent disputes as to who holds it. He pays a penalty if he sell without doing this act for the public security, or if he records an improper plat. If the plat be recorded without acknowledgment, it is good evidence of the town plat, though it does not vest the fee in the county. In such case, the description of the *streets,*&c. and the sales *to them,*would operate by way of dedication to vest the public with the use of the streets. In that view this plat was a valid one, though not acknowledged, and the public right to use the streets was complete by virtue, of the dedication, as if’acknowledged, and the designation of it had conveyed the fee to the county.

The statute expressly declares streets, &c. of towns public highways, and enjoins it as a duty on supervisors to remove obstructions.

The evidence, in our opinion, was competent to prove the facts assumed, and should have been admitted, if, under the issue, it was *751■admissible. It is urged that these matters were of justification, and should have been pleaded. It is not necessary now to decide that question, it is sufficient for the present case, that we consider such matter evidence under the general issue in mitigation of damages, and it does not lie in the mouth of the plaintiff to object, that matter in bar of his right is only used to lessen the amount he recovers.

The judgment is reversed, and remanded back.