MORRIS v. BOWERS, 1 Ohio Ch. 749

Collett, C. J. The act to provide for recording town plats, (22 O. L. 301) in the first section, requires of proprietors of towns, before they sell, to have a plat thereof accurately made out for record, and the second

section declares the map i shall particularly set forth and describe all the public ground within such town,by its boundaries, courses, and extent, and the lots intended for sale by progressive numbers, and their precise length and width.’ The law subjects the proprietor to a'penalty, if he sell before the plat is recorded, or record a plat which does not so describe the public ground, &c. and declares that when'the plat is so made, acknowledged, and recorded, it shall be deemed a conveyance vesting the fee in such public ground in the county within which the town is situated, in trust for the uses and purposes expressed, or intended to be.

The law does not declare a plat of a town not acknowledged, á nullity. It would be manifestly unjust to do so. The plat is made, recorded, and lots sold, bounded on streets, «fee. the grantor should not make his own act void, as a consequence of his own laches. The law does not so intend. If acknowledged and recorded, the fee of the public ground is vested in the county in trust, to prevent disputes as to who holds it. He pays a penalty if he sell without doing this act for the public security, or if he records an improper plat.

If the plat be recorded without acknowledgment, it is good evidence of the town plat, though it does not vest the fee in the county. In such case, the description of the streets, &c. and the sales to them, would operate by way of dedication to vest the public with the use of the streets. In that view this plat was a valid one, though not acknowledged, and the public right to use the streets was complete by virtue, of the dedication, as if’acknowledged, and the designation of it had conveyed the fee to the county.

The statute expressly declares streets, &c. of towns public highways, and enjoins it as a duty on supervisors to remove obstructions. The evidence, in our opinion, was competent to prove the facts assumed, and should have been admitted, if, under the issue, it was ■admissible. It is urged that these matters were of justification, and should have been pleaded.

It is not necessary now to decide that question, it is sufficient for the present case, that we consider such matter evidence under the general issue in mitigation of damages, and it does not lie in the mouth of the plaintiff to object, that matter in bar of his right is only used to lessen the amount he recovers. The judgment is reversed, and remanded back.