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


are sorry to say that it has come to a
stand still, we trust, however, but
temporarily. Some years ago, in
1859, we believe, the city corporation
laid out a street through the center
of it, one hundred and twenty feet
wide, running from Second street to
the head Of the wharf Some of our
citizens claim that the laying out of
this street was proper and legal
act, and that it cannot now be closed
to public use. Hence, they have put
an injunction on the further progress
of the work until the courts decide
this street question. The matter
will come before the Common Pleas
Court this week.
The right of the city to fence and
improve the Public Square, for 8
park or pleasure ground, has been
before the Courts before, and the de-
cision was in favor of that right. 1t
went through all the courts, to the
Supreme Court of the State, and the
decision of that court of final appeal
is found in the second volu me of.
the Ohio State Reports. 1t was rem
dered in the Spring of 1858. As q
matter of local interest, at the pres
ent time, we give this decision in
full
WILLIAM Fl. LANGLEY q. TIE MAYOR
AND TRUSTEES Of TIE TOWN OF GAL
LlPoLIs, AND julius RgGNlER. -
Although the manner of the dedication, and
the principles and rules of property appli-
cable to public highways and public
squares or commons, in cities and villages,
may rest upon the same ground. yet the
use and purpose of each is different and
clearly distinguished from the other.
The easement of public highway compre-
hends the rights of all individuals in the
community, whether upon foot. or horse
back, or with any kind Of vehicle. to pass
and to re-pass, together with the right oi
the public to do all the acts necessary to i'm
prove it and keep it IN repair. But the use
or beAefcial purpose of public common or
square, in city or village, where no special
Limitation or use is prescribed by the 'dedi-
cation, is such, that it may be improved
and ornamented for recreation and health,
or for the public buildings. or as a place
for the transaction of public business of the
people of the city or village; or both for the
purposes of pleasure and business, at the
discretion of the municipal authorities.
The dedication of LA Place" in the village
of Gallipolis. subject to the single restric-
tion, that it should not be obstructed on the
bank Of the Ohio river by any kind of pub
lie buildings, was for the usual and ordina-
ry purposes of public square. and as such,
subject to the control of the public authori-
ties of the people of the village.
The long-continued use of tins ground as an
unenclosed public common, could lay 70
foundation for any presumption against the
right of the village to improve the ground,
and use it in any othrr manner deemed
more advantageous and beneficial to the
public, within the terms of the dedica-
tion.
The provision in the act incorporating the
town, which among other things, cOnfers
the power Ito regulate, improve, and keep
open, unobstructed and in repair, the land
ings, commons, streets, DC, within the cor
poration, has reference to the appropriate
use and object to which each was Dedicated,
requiring each to remain open and unob-
sCructed, so far as necessary to accomplish
the appropriate object for which it was de-
signed, and no further.
This is bill in chancery, reserved
by the district Court of Gallia Coun-
ty for decision by this Court. The
facts appear in the opinion of the
Court.
AR1Us NYE & VIM. S. NYE, for COM
rlainant.
A. CUSHING, for defendants.
BARLEY, e. j. This is a bill in
chancery to enjoin the. corporate au-
thorities of the village Of Gallipolis
from enclosing the "Publ,c Place" or
Public Square" of the village, for
the purposes of improvement and
ornament. This public ground, as it
appears, never had been previously
enclosed, but had been used for over
fifty years as an open public common,
and to some extent as public high
way for the passage Of carts, drays,
teams, &c. The complainant, who
is a dealer in merchandise, produce,
&C., owns and occupies a lot with
valuable improvements thereon,
fronting upon this public place. And
he AYERS that the proposed enclosure
of this ground will greatly damage
him in the value of his property, and
also in his business, by preventing
teams, carts, &c, from taking the
nearest route in going to and from
his place of business to the public
landing on the river, and compelling
them to pass round BY the streets;
also by obstructing the use of his
place for horse racks, the placing of
articles, and the convenient accom-
mediation of teams, &c
The answer of the defendants ad-
mits that the authorities of the town
are proceeding to improve this pub
lie ground by an enclosure for the
use and benefit of the citizens of the
village; but denies the equity of the
bill, and insists on the right of the
public authorities of the village to
enclose and improve the public
square, DC. .-
The fact Of the dedication of the
public ground in question to the use
and benefit Of the inhabitants of the
village of Gallipolis4 fully appears;
and it was so adjudged by the Su
preme Court of this State in LIE Clercq
ct a. q. The Trustees Of The To@n of
Galiipolts, Ohio Rep. 2l7. But the
crtent and purpose of such dedication
constitute the ground of controversy
in this case. 1t is claimed on the
part of the complainant, that at least
one of the purposes of the dedica-
tion, was that of public highway
to the fullest extent, and further that
the place was made subject to use
for teams to stand and turn upon, for
horse-racks and for the deposit of ar,
ticles. On the other side it is claimed.