Lessee of Cincinnati v. Commissioners

7 Ohio 88 | Ohio | 1835

Judge Hitohcook

delivered the opinion of the court:

The finding of the jury in this case is not as full as could have-, been wished, and it is not, perhaps, improper, according to the-suggestion of the'plaintiff’s counsel, to resort to public history, and to official records to ascertain facts which have not been found by the jury.

The premises in controversy constitute four lots in the city of Cincinnati. Subsequent to the organization of the county of Hamilton, these lots were occupied by the county, for purposes of county buildings, and continued to be so *oceupied, until the-court-house referred to in the special verdict was burnt. After-this accident, the lots were leased to individuals, and the rents were paid to the county. Another fact, which is deemed material, by the plaintiff’s counsel, is, that at the time the town of Cincinnati was laid out, there was but one county in the territory now constituting the State of Ohio, to wit: the county of Washington. The county of Hamilton was not proclaimed, until January, 1790' —whereas the town of Cincinnati was laid out in 1789.

The jury find, in the first place, that this property was dedicated, by the original proprietors of Cincinnati, for public uses. This, if the lands “are used for the object, and in the manner intended by the owner, inures as a grant,” 6 Ohio, 303. The original owner-is thereby divested of his title, although there is no specific grantee-in whom the title can vest. But to avoid any difficulty on this-account, provision was made at an early period of our history, by legislative enactment, vesting in the county the fee in lands appropriated by the proprietors of towns for public uses. On December 6, 1800, a law was enacted by the territorial legislature, 1 Chase. Stat. 201, requiring the proprietors of any town that had theretofore been, or that thereafter should be laid out within the territory, to cause a true and accurate map or plat of such town, to be recorded in the recorder’s office of the proper county — and the same law provides, that the fee of any, and all parcels of ground designated or intended to be for public uses, should, by such recording be vested “ in the county, in which such town is, in trust to and for the uses and purposes therein named expressed, or intended, and for no other use or purpose whatever.” Upon the recording of the plat of Cincinnati, the fee of the lots in controversy, was-vested in the county of Hamilton — not to be disposed of in such a manner as the authorities of the county might, deem most ex-pediment and proper, but in trust for the uses “ intended ” by the-proprietors of the town.

What were these uses? The jury find “ that the county came into possession with the consent and' approbation of the people of the town, and occupied and enjoyed the property, with the consent of the people of the town, up to the time the stone court-house was burned, in 1813 or 1814,” and “ that in so occupying said property, it was strictly in accordance with the objects had in view by the original donors.”

*There is, perhaps, some little difficulty in arriving at a satisfactory conclusion as to the meaning of the jury in this part of the verdict. The inference drawn from it by the counsel for the plaintiff is, that it was in accordance with the object of the-original donors, that these lots might be used for the public use-of a court-house and jail, provided the people of the town would permit. They argue upon the hypothesis that the use “ intended ” must have been the use of the town; and insist that the finding of' the jury, that the property thus used was so used “with the consent of the people of the town,” sustains this position. But is this-a fair exposition of the verdict or of the intent of the jury? We think not. We understand the jury to say, that these lots were dedicated for public use, for the purpose of erecting thereon a-court-house and jail. They had actually been used for this purpose, and the .jury find, “ it was strictly in accordance with the objects had in view by the original donors.” If we are correct in-this exposition of the verdict, then it follows, that this property was “ intended ” for the use of the county, rather than of the town. Counsel insist that such can not be the meaning of the jury, nor could it have been the intention of the donors, because when the> town was laid out there was no other county in the territory than -the county of Washington. The fact is correctly stated, hut it by no means follows that it could not have been intended that this property should be for the use of a county. The same history to which resort is had to prove this fact, will also show that it was ■no uncommon thing for the owner of lands, when laying out a town, to appropriate certain lots for the use of a court-house and jail, in anticipation that at some future period a county would be erected of which the town then laid out would be the county seat; •and it would have been strange if the proprietors of Cincinnati had not appropriated lots “ intended ” for this purpose. The ver-dict of the jury ascertains the fact, that the property in controversy was dedicated for this purpose, and for a time was used for ■this purpose. Upon the principle of dedication, the right of possession was in the county so long as it was thus used; and from the time of recording the map of the town plat, the fee was vested in ■the county, in trust for the uses intended by the donors.

The jury next find, “ that so soon as said property was appropriated to private uses, so soon was the object of the ^original grant perverted and departed from.” Taking this to be the fact and the law, for it seems to be rather matter of law, it by no means ■follows that the plaintiff has a right of action. In this, as in every other action of ejectment, the plaintiff must recover upon the ■strength of his own title. He must show a right of possession, at least a better right than the defendant. It will not do for him to rely upon the weakness of his adversary’s title, unless he can show some right in himself. In the ease before the court, the legal title, the fee of the land, is in .the county. Were we to admit that •a cestui que trust could maintain ejectment againsu his trustee, still the lessors of the plaintiff do not sustain that relation to the de fendants. This property is not holden by the county for their use, -but according to the verdict of the jury, it is holden for the use of .the county itself, for the purpose of erecting thereon public buildings. At least it was so holden while those buildings remained; and if since that time it has been otherwise appropriated it is not •for the lessor of the plaintiff to complain, for she is not thereby curtailed in any of her rights.

In the opinion of the court, the law arising upon the special verdict is with the defendants, and judgment must be entered accordingly.