In the view we take of this case a great deal of the very learned and elaborate argument of counsel upon both sides is upon points which, thоugh very material in one aspect of it, are yet unimportant in the determination, as we are of the opinion that the proprietors of this land, whеn they laid off the town, by lots, streets, lanes, etc., and sold the lots, parted with all
It is, without doubt, true that the original owner of the soil retains the fee in himself when the public, in the exercise of its right of eminent domain, seizes a right of way over his land. And if the roаd or way be abandoned by the public, he has the right again to its exclusive use. But even in such a case, it does not follow that if the public permit a streеt or road to be obstructed, not abandoning the way, by this misuser, the right is lost, so that the original owner may sue for the land.
It is also true that, whilst, as a general rule, the оwnership of a fee in a highway or street is prima facie to be considered as in the owners of the abutting land, yet this is only a presumption; and if the original owner of the land have sold the abutting premises, reserving his right in the soil of the street, or if his deeds so define the laud sold as necessarily to exclude the fee in the street, thеn the fee remains in the original owner: Jackson ex dem. Yates vs. Hathaway,
But there is a clear distinction by the authorities, and in the nature of the case, between a mere right оf way seized by the public or dedicated to the public and the case made by this record. Here is a contract. The owner of the land proposes to lay out a town. He makes up a map, with the lots, streets, lanes, etc., marked upon it, and he not only agrees to dedicate the streets to the public,but he sells the lots abutting upon the streets. The public accepts the streets, the lot-owners buy the lots under these representations, and the
In this ease there are three parties to the transаction, the owner of the land, the public, and the purchasers of the lots. And the whole affair is a matter of contract, for a valuable consideration. Especially is it true that there are more parties at interest than the public and the dedicator. The purchasers of the lots acquired a contract right in the street. They acquired the right to use it themselves, and the right to have the street open to all others whom they may desire to use it. This title is gone from the owner, except with the consent of the public and the lot owners. If the public were to forfeit or abandon it, this would not affect thе rights of the lot owners. The owner of the land has parted with his right ever to assert his right to the soil to the injury of the easement.
If the street be obstructed or neglеcted by the public, there is a ,method of compelling the public authorities to keep open and unobstructed the street that, by a contraсt, was accepted. And even if it be abandoned by the public, the private right of the lot owners to its use remains. In the case of Barclay vs. Hansel 1, 6 Pеters’ Reports, 498, 504, the Court say: “Where the proprietor of a license disposes of his interest in it, he would seem to stand in a different relation to the right of soil in regard to streets and alleys of the same, from the individual of land over whose soil a public road passes, and who continues to hold the land on both sides оf it.” And again: “If the ground in controversy in ejectment had been dedicated for a particular purpose, and the city authorities had approрriated it to another and entirely different purpose, this might afford ground for a Court of chancery to compel the specific execution of the trust by restraining the corporation or by causing the removal of the obstructions.” And this same doctrine is held in the case of Rowan’s executors vs. The Tоwn of Portland: 8 B. Monroe R., 236; Williams vs. First Presbyterian Church, 1 Ohio State R., 478; Guigar vs.
In this ease there is no abаndonment of the street by the public. The most that is claimed is that there is an obstruction in it. I do not think a case can be found where the original owner of thе soil has been held to have the right to bring ejectment for the land on the ground that the public has permitted even a public road taken from him to be оbstructed. Were he to recover the possession, then he would be obstructing the street.
When this street was laid off and the lots abutting upon it sold, and the lots upon the other streets sold, the owner of the tract parted with his right in the land to the public. The public authorities hold it for the uses proper for a street, to-wit: to pass over, and to use it as streets are usually used in towns and cities, to-wit, for drains, sewers, water-pipes, gas-pipes, etc., etc. And if the city directs it, the public or any private citizen injured may enforce the proper use.
As we have said, if the 'street be abandoned by the abandonment of the city, so that there is no use for streets and the whole becomes a farm, with no lot-owners to have rights, the street would, prima fade, revert to the owner of the rеbutting land. Whether this last presumption is rebutted by the words of the deeds by which these lots passed out of the original dedicator, we do not say, as we have nоt the deeds before us. We should, however, be strongly inclined to hold that the title passed to the owners of the abutting lots, even
In cases like this, of a sale of lots upon a street dedicated by the vendor of the lots, there is an element that does not exist in the cases referred to by the counsel for the defendant in error, to-wit: 15 Johnson’s R., 447; 10 Peters’ R., 25; 13 Howard’s R., 155. That element is, that this street was one of the inducements of the vendees tо buy. The price of the land to the vendor was increased by his dedication of the street. Its precise width and the precise uses to'which it shall be put are material to the owner of the abutting lands, and not to the original proprietor. Even its existence is a matter of which the original owner need nоt care, after he has parted with the other lots upon it. And we should require a very strict and precise description of lines in the original deed, showing sоmething more than a reservation by implication, before we would hold the natural and legal presumption that the present owners of the abutting lots are the owners of the soil of the street, so laid out and so dedicated, to be rebutted.
We have not thought it necessary to decide the other рoints made, because, in our judgment, the case turns upon the point we have discussed, to-wit: the right of the plaintiff, or, indeed, of anybody, to maintain ejectment for this land, under the circumstances as they appear in the record.
Judgment reversed.