Gallipolis journal. [volume] (Gallipolis, Ohio) 1837-1919, 1868-11-26

of dedication, and the principles and
rules of property applicable to pub
lie highways and public squares may
rest upon the same ground, yet the
use and purpose of each is different
and clearly distinguishable from the
other. The easement of q public
highway, the legal incidents of which
are well defined, comprehends the
rights of all individuals in the CON-
munity, whether upon foot, on horse
back, or with any kind Of vehicle, to
pass and re-pass, together with the
right of the public to do all the
acts necessary to improve it, and
keep it in repair. But the use and
beneficial purposes of apubhc square
or common in village or city,
where no special limitation or use is
prescribed by the terms of the ded-
ication, are entirely different from
those OF public highway. Such q
place, thus dedicated to the public,
may be improved and ornamented
for pleasure grounds and amuse-
ments for recreation and health; or
it may be used for the public build
ings, and place for the transaction of
the public business of the people of
the village OF city. or it may be
used for purposes both of pleasure
and business. Any such appropria-
ton may be made, under the direc-
tion and control Of the municipal au.
thorities; but the place must, for the
purposes OF the dedication, remain
free and common to the use of all
the public. And an appropriation
to the purposes of mere public
highway, or to the private and indi-
vidual use and purposes of any lot
owner or particular class of lot own
ers in the village or city, of ground
dedicated as that in question, would
be inconsistent with the object of the
dedicstion, and q plain div ersion
from its appropriate and legitimate
uses. This is consistent with the
doctrine Of the case of Post v. Pear
sail, 20 Wend, Ill, wherein the pur-
poses and uses to which the princi-
pie of dedication will apply, are ex-
tensively examined. In The Com
monwealth v. Alburgsr ct. al, l
Wharton, 469, very full inquiry was
instituted into the rights and uses
connected with certain public squares
in the city of Philadelphia; and the
Court, by SERGEANT. Justice, say:
"When property is dedicated or
transferred to public use, the use is
indefinite and may vary according to
circumstances. The public not being
themselves able to manage or at
tend to it, the care and employment
of it must devolve upon some local
authority or body corporate as its
guardian, who are in the first in
stance to determine what use of it,
from time to time, is best calculated
for the public interest, subject as
charitable uses are, to the control of
the laws aud the courts, in case of
any abuse or misapplication of the
trust. The corporation has not the
right to these squares SO as to be
able to sell them or employ them in
way variant from the object for
which they were designed.
In the case before US, the terms of
the dedication are expressed in q
resolution adopted by the proprietors
of the village of Gallipolis, at a
meeting held by them on the 18th
day of December, 1895, which was
originally in the French language;
but being translated into the English
language, is as follows:
"Resolped, (or agreed That, for
the public good (or convenience)
and the interest of the inhabitants,
the streets and LA Place" shall
remain free, and never be alienated
or obstructed on the bank of the
river by any kind of buildings"
Although the streets and "Ls
Place" were coupled together in this
resolution, it by no means follows
that the dedication of each was for
the same purpose. Each had its ap.
propriate object and use. 1t is ex-
pressly provided that the street and
la Place" should never be aliena-
ted and that each should remain free
to the people of the village, in its
appropriate use. This was not to
any extent inconsistent with the
terms OF general dedication. Ne
special limitation was imposed in the
terms of the dedication. except that
the public grounds thus dedicated
should never be Constructed ON the
bank of the river by any kind of
buildings" And tits noteven claimed
that any attempt is made to interfere
with this restriction. With this sim
gle exception, the dedication of
"La Place" was made for the usual
and ordinary purposes of a public
square; and, therefore, as such, un-
der the control of the authorities of
the people of the village; and liable
to be appropriated either to the pur-
pose of a public common, or of the
public business of the people of the
village, or to be improved and Or
namented for pleasure grounds for
health and recreation, at the discre-
tion of the public authorities.
1t is alleged in the bill, that the
complainant, when he purchased his
lot from the proprietors Of Gallipo-
lis, paid more for it in consequence
of its being situated adjacent
to this public ground, DC. If
this were go, it was not because he
obtained any private interest or use
in the public square, but simply be-
cause of the advantage of the prox-
unity of his location to it.
1t is claimed on behalf of the
complainant that the right of the
people of the village of Gallipolis |
TO control this public ground within
the terms of the dedicatisn, is limi-
ted by the long continued use of it
as an open public common; or at