#### Jabez Seegar *v.*Daniel G. Harrison.

1. Where the proprietors of adjacentlands agreed that each would appropriate from his land a strip to be used in common for a public street, and convejmnces and improvements have been made on the faith that the street would be opened, the agreement may be enforced in equity, whether the public authorities accept the street as dedicated to public use or not.

2. The grantee in a deed, which describes the premises conveyed as bounded on a street named, is bound to take notice of the existence of such street; and he is chargeable with such knowledge as to the location of the street as he could have obtained by reasonable inquiry.

Error to the District Court of Hamilton county.

The original petition was filed by the plaintiff, Seegar, to restrain the defendant, Harrison, from making excavations on, and building a permanent stone wall across a strip of ground described in the petition as Irwin street, in the village of Fairmount. Fairmount was a suburb of Cincinnati, and has since been brought within the corporate limits of the city.

The defendant admits the making of the excavations and *15the intention to build the wall on the ground described in the petition as Irwin street, but he denies that the ground in question constitutes part of a street, and claims the right to improve it as his private property.

The plaintiff and the defendant are adjoining proprietors, the lands of the defendant lying north of the plaintiff’s. Both parties derive title either directly or by mesne conveyances from Joseph A. James, who owned a larger body of land from which the parcels, owned respectively by the plaintiff and the defendant, were taken. The defendant’s immediate grantor is Joseph Wilson.

On the 24th of July, 1852, James Wilson, and Seegar, together with two others, Bryant and Trevor, executed what the parties call a deed of dedication, the object of which was to appropriate certain ground therein described to streets and highways, having reference to the plats of Eairmount as then laid off.

This deed contains the following provision: “ And the parties hereto, and especially the said James Wilson and Seegar, hereby dedicate a certain other street called ‘ Irwin street’ on James’ plat of Eairmount, as laid out by said James, as a public street or highway forever, the width of fifty feet from a point in the old State road, three hundred feet south of Central avenue, with the privilege of changing the same to suit the ground in extending said Irwin street eastward from Charles street to the east line of Dr. Seegar’s lands; and'the said James further dedicates said Irwin street eastwardly through his lands, from the east line of said Seegar’s lands to the northwest corner of the reserved lands of George Luckey, fifty feet wide, as laid down on the plat aforesaid; thence eastwardly thii'ty-five feet wide to the Millcreek road, the said Seegar reserving the right so far as the said Irwin street runs through his lands, of keeping the same closed up for a period not exceeding six years from the date hereof.”

It appears from the testimony of James, that before this deed was executed, Seegar, Wilson, and himself went over the ground, and agreed verbally that Irwin street should *16be located north of the platform connected with Seegar’s stable; and that the street was subsequently graded where they had agreed it should be located.

Subsequently, "Wilson and Seegar. entered into the following agreement:

“It is agreed on the part of said Wilson to transfer to said Seegar, by an unincumbered warranty deed, the following described lot of ground, situated in Fairmount: Commencing at the junction of the old State road with said Seegar’s west line of a five-acre lot. he now lives on, running in a northwesterly direction along said old State I’oad to Wilson’s west line; thence along said line to the south side of Irwin street, *as novo located by the above parties;*thence east along Irwin street to Seegar’s west line; thence south to the place of beginning. And in consideration of the above transfer, the said Seegar doth agree to transfer to the said Wilson, by an unincumbered warranty deed, the following described lot of ground, situated in Fair-mount, also commencing at said Wilson’s northwest corner of the lot he now lives on, running west on Central avenue fifty-five (55) feet; thence south to the old State road; thence southeast along said old State road to the north side of ■ Irwin street, *as located by the above parties;*thence along Irwin street to Wilson’s west line; thence north on said line to the place of beginning.

“In testimony whereof, we have hereunto subscribed our names.

“ Signed this 22d of March, 1858.

(Signed,) “ Joseph Wilson,

“J. Seegar.”

The testimony shows that a few days before the signing of this agreement, Wilson and Seegar staked off Irwin street on the ground where the plaintiff claims it to be located; and that the agreement was entered into with reference to the street as thus located. The stakes were set so as to make the street fifty feet wide, and the south side of the street came up to the north wall of Seegar’s stable improvements. Seegar has since continued to occupy and improve up to the south line of the street as thus *17located, part of the improvements consisting of a stone wall built on the line.

Testimony was also given as to the extent to which the-street had been worked and improved, and as to the character of the ground, which it is not deemed necessary to state.

On the 22d of June, 1859, Wilson conveyed the premises which he obtained from Seegar, under the agreement between them of March 22, 1858, to John Swasey. In this-deed the premises are described as bounded on the south by Irwin street.

On the 11th of February, 1861, Swasey conveyed the same premises to the defendant and Wilson, describing the-boundaries as follows:

“ Commencing in Central avenue, in the town of Fair-mount, on the line between the ground formerly belonging to Joseph Wilson; thence west on the south line of Central-avenue two hundred and eight and one-half (208J-) feet; thence at right angles to Central avenue two hundred and thirty-three (233) feet, inore or less, *to Irwin street;*thence-on the *north line of Irwin street*eastwardly two hundred and fifteen (215) feet, more or less, to the line of Jabez Seegar; thence on the line of said Seegar and Wilson north twe hundred and twenty (220) feet, more or less, to the place of beginning; being the same premises conveyed to the grantor, by deed, from Joseph Wilson and wife, dated the. 22d day of June, 1859.”

Other deeds were given in evidence recognizing Irwin street, to which it is not deemed necessary here to refer.

Xeziah Wilson, wife of Joseph Wilson, gave evidence to-the effect that after the street had been staked off, Seegar consented that the north line of the street might be moved south, so as to leave the street thirty-five feet wide, instead of fifty feet.

As the rights asserted by the defendant, and the structures he proposes to erect, extends south of the thirty-five-feet, it is not material, on the record now before the court., to consider the effect of such consent, if established.

*18In the court below, the petition of the plaintiff' having been dismissed, and a new trial refused, he took a bill of exceptions, setting out all the evidence. The present petition'in error is prosecuted to reverse the judgment.

*J. T. Grapsey,*for plaintiff in error:

Objects on the ground, fixed by the parties, control course and distance, estimated quantity, plats and surveyor’s returns. *Lessee of Alseire*v. *Hulse,*5 Ohio, 525, 534; *Van Wyck*v. *Wright and Johnson,*18 Wend. 157, 168; *Lodge*v. *Barnett,*46 Penn. St. 477, 484.

Seegar and Wilson located Irwin street for their division line; apd Seegar purchased and made expensive improvements up to it, with the understanding that it was a street, and would remain open.

“The practical location of aline by adjoining proprietors, upon the faith of which valuable improvements have been made, concludes them and their successors in interest.” *Laverty*v. *Moore,*33 N. Y. 658; *Den. of Hanning*v. *Van Hotan,*2 Zab. 61, 68; *Orr*v. *Hadley,*36 N. H. 375, 378.

Seegar was not only an owner of lots abutting on the street, but he gave the right of way across his five acres, and exchanged his property with Wilson for the purpose of having a street, and having it where he claimed it. His right to the injunction sought is clear. *Brown*v. *Manning et al.,*6 Ohio, 298; *Le Clerq*v. *Gallipolis,*7 Ohio, 218; *Truehart*v. *Price,*2 Mumf. 468; 4 Bouv. Inst. 141; 23 Ohio St. 610; 11 Ohio St. 274; 18 Ohio, 18.

The deeds to Swasey, and from Swasey to Wilson and the defendant, make the north line of Irwin street their southern boundary, and show that the course of Irwin street was not east but easterly. This was notice to both Swasey and Harrison that Irwin street existed, and also the-exact location of Irwin street, if they could have learned where it was by inquiry. *Reeder*v. *Barr,*4 Ohio, 458, 459; *Bonner*v. *Ware,*10 Ohio, 465, 466; *Dexter*v. *Harris,*2 Mason, *19536 ; *Bush*v. *Ware et al.,*15 Pet. 93 ; *Kelley*v. *Stanbery,*13 Ohio, 408.

*Benjamin Butterworth,*for defendant in error:

Joseph Wilson never dedicated Irwin street to the use of the public, as a public highway. The dedication or pretended dedication was neither accepted by the public nor regarded by the parties. There was no acceptance by the public, either through town authorities nor public travel; and without these, one or both, there could be no valid claim that there was a public highway. *City of Detroit*v. *The Detroit and Milwaukee R. R.,*23 Mich 173; 36 Ill. 96; 57 Ill. 363; 8 Ohio St. 440.

There was only an agreement that Irwin street might be opened in a certain place. But it was not opened, but, on the contrary, was fenced up; and neither the public, plaintiff', nor the defendant, or Wilson, used it, nor recognized it.

Before there has been an acceptance by the public, the donor can revoke the dedication, and this may be done by .any act inconsistent with the rights of the public to use the ground as a public highway. *Haldam*v. *Trustees,*21 N. Y. 474; *Lee*v. *Village of Sandy Hill,*40 N. Y. 442; *Parsons*v. *Trustees, etc.,*44 Georgia, 529; *Trustees*v. *Walsh, et al.,*57 Ill. 526 ; Washburn on Easements, 3 ed. top paging (sec. 10), 185, 195, 210, 222; 26 Barb. 634; 8 Ohio St. 440.

The only notice Harrison had, was that the public authorities of Fairmount, and afterward of Cincinnati, had an casement in the strip of land dedicated by said writing of July 24, 1852, which it might or might not insist upon asserting, and he took the land, subject to that right of the public.

*20
      *G. M. Lee,*for defendant in error,

argued that Irwin street existed only in name, a street in fancy but not in fact ; that stakes, showing the boundary of a street, being driven down, do not make a street. And that this was not a legal street, cited *Barclay*v. *Howell,*6 Pet. 498; *Arnold*v. *Flattery,*5 Ohio, 273; *Ingersoll*v. *Hereider,*12 Ohio, 527; *McLaughlin*v. *Stevens,*18 Ohio, 94; *Perquite*v. *Lawrence,*11 Ohio St. 274; *Lane*v. *Kennedy,*13 Ohio St. 44.

White, J.

We agree with the counsel of the defendant, that the record in this ease neither shows a statutory dedication of Irwin street, nor such an acceptance by the public of a common-law dedication, as would preclude the-parties in interest, by common consent, from reclaiming the property intended for such street. But neither of these considerations, in our opinion, determine the rights of the-parties in this case. These lights áre founded upon contract. They arise upon the written agreements entered, into by the plaintiff and Wilson, the defendant’s grantor, and the acts of the parties done under such agreements.

Wilson and the plaintiff were the proprietors of adjacent, lands. Eor the purpose of benefiting their respective estates, by rendering them more accessible to themselves, and the public, they mutually agreed that each would appropriate from his land a strip to be used in common for a. public street. By the agreement of July 24, 1852, they reserved the privilege of changing the location of the street in extending it eastward through their grounds.

They afterward located the street through their lands by staking it off; and, in the agreement of March 22, 1858,. they recognized the street as thus located. The lands which they agreed to exchange were described in that agreement as bounded respectively on the north and south of Irwin street, “ *as now located by the above parties.”*In pursuance of this agreement, conveyances were made; and the plaintiff, thereafter, occupied and improved his property with reference to the street as thus located.

Under these circumstances, it seems to us, in the absence-*21of fraud or mistake, the agreement ought, upon well-established principles of equity, to be enforced, whether the public authorities accept the street as dedicated to public use or not.

When the street is opened, the public will have the right to use it, and the proprietors who are parties to the agreement for its establishment, have the right to insist upon affording the public the opportunity of using it. *Child*v. Chappell, 5 Selden, 257, 258.

2. The deed from Swasey, under which the defendant claims, describes the premises conveyed as bounded on the south by the north line of Irwin street.

The defendant is bound to take notice of the boundaries called for in the deeds under which he holds ; and, where sick deeds recognize the street as a boundary, he is es-topped, as against those under whom he holds, from denying the existence of the street. Being thus charged with notice of the existence of the street, he is also chargeable with such knowledge as to its location as he could have obtained by reasonable inquiry.

The character of Seegar’s improvements were such as to indicate that the street did not extend south of them.

In regard to the suggestions made on the argument as to improvements made after the dismissal of the petition, it is only necessary to say that no question in regard to them arises on this record.

*Judgment reversed and cause remanded for a new trial.*

McIlvaine, C. J., Welch, Rex, and Gilmore, JJ., concurring.