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Hamilton County Appeals.

agreement by him that same be charged against his future interest in the estate, is held to his contract by way of estoppel.

A case directly in point is that of Goodson v. Goodson, 31 O. C. C. 627 (12 N. S. 158).

Other cases where such estoppel is held are: Low v. Low, 77 Me. 37; Callicott v. Callicott, 43 So. Rep. 616 (Miss.); Vreeland v. Vreeland, 65 N. J. Eq. 668 [56 Atl. Rep. 1089]; Garcelon's Estate. In re, 104 Cal. 570 [38 Pac. Rep. 414; 32 L. R. A. 595; 43 Am. St. Rep. 134].

In the opinion of the court, therefore, it is the duty of the executor in the distribution of said estate to charge against the share of Mrs. Ellard the sum of $2,000. Decree accordingly. Swing and Jones, E. H., JJ., concur.

DEDICATION-ADVERSE POSSESSION.
[Licking (5th) Court of Appeals, May, 1914.]
Voorhees, Shields and Powell, JJ.

*NEWARK (CITY) V. HARRIET B. CRANE ET AL.
NEWARK (CITY) v. JAMES W. BURNETTE ET AL.

1. Land Dedicated for a Specific Use can not be Diverted to Other Uses.

Where an owner dedicates land to the public for a particular use, specifying the use and imposing restrictions for the dedication as expressed the land can not be applied to any other use or the restrictions disregarded.

2. Municipality can not Hold as Trustee and Adversely.

A city holding land as trustee for the use of the public as a cemetery can not, at the same time, hold it adversely and for its own benefit.

3. Fee Remains in Heirs of Dedicator and upon Abandonment of Original Purpose Reverts.

Where land was dedicated to the town of Newark for a burying ground, and the city council of said town subsequently passed an ordinance prohibiting any further burials in the land so dedicated and ordering the removal of the remains buried therein, the ordinance was a valid exercise of the police power of the city and operated as a complete abandonment of the dedi. Reversed, no op., Newark v. Crane, 91 O. S. 000; 60 Bull. 271.

Newark v. Crane.

cated use and the land would revert to the original owner, or his heirs. When the property is no longer desired, or the purpose for which it was dedicated attainable, it will revert to the dedicator.

4. Upon Abandonment by a Town of the Public Purpose of the Dedlcation of the Land, the Property Reverts to the Original Donor. Upon abandonment by a town of the public purpose of the dedication of the land, the property reverts to the original donor. 5. City Abandoning Dedicated Use Denied Retention for Other Purposes.

Where a city or town has by its own act abandoned the use and violated the conditions specified in a deed, it can not retain the grounds for any other purpose.

6. Adverse Possession of Dedicated Land Cannot Arise from Permissive Use.

That a city may acquire title to land under the statute of limitations, by such adverse possession as is necessary to con vey such title to land is not doubted; but the very foundation elements of adverse possession are wanting when the only possession is permissive possession for a dedicated use and while the city holds control of these premises as a graveyard the defendant could not take possession.

7. Fee not Conveyed by Common Law Dedication.

A common law dedication does not convey a fee.

8. Fee of Land Dedicated for Cemetery Uses Remains in Patentee and Heirs.

In the Burnette case the fee in the land never passed out of the heirs of the patentee, but was subject only to the use of the public as a cemetery, and where the city abandoned that use the premises revert to the descendants of the patentee free from the dedicated use. Such dedication, if there were any dedication, was a common law dedication, and its use would be merely permissive, and not adverse and the town or city of Newark would have no title and no other possessory rights; and the use and control of the grounds was not adverse to the dedicated use. In such case its use would not start the statute of limitations. Nothing but an open, notorious, visible, hostile and inconsistent act of possession could have that effect.

[Syllabus by the court.]

ERROR.

Ralph Norpell, city solicitor, and Fitzgibbon, Montgomery & Black, for plaintiff.

Owen Nash and Craighead & Van Pelt, for defendants. VOORHEES, J.

These cases were submitted together.

Licking County Appeals.

It will be sufficient in order to present the real issues in this case to state the following facts:

In January, 1801, a patent was issued to John Cummings, John Burnette and George W. Burnette, for section four, township two, range twelve, containing 4220 acres of land, and the premises embraced in the controversy in this suit, that is, the graveyard, were a part of said section.

On May 15 and 19, 1814, John and George W. Burnette having died, the heirs of George W. Burnette conveyed their interest in said premises to John N. Cummings and John W. Burnette and Harriet Burnette, heirs of said John Burnette.

On December 6 and 14, 1814, John W. and Harriet Burnette and John N. Cummings, deeded to William C. Schenck an undivided interest in said land, amounting to a one-third interest in the whole tract. The recitals in this deed and the other deeds mentioned exhibit the chain of title and the amount of their respective shares, and show the relation of the parties and their respective shares in said land.

On June 20, 1817, an amicable partition suit was begun between Cummings, Schenck and James W. and Harriet Burnette, for the partition of the residue of the lands which remained unsold. This land included both inlots and outlots in the town of Newark, Ohio. It is not claimed that the lands known as the graveyard were set off to anybody in said partition proceedings. The plat in partition record A, June term, 1817, of the court of common pleas of Licking county, Ohio, page 7, attached to the record on page 9 of the bill of exceptions shows the old graveyard.

The plat on page 7 in the record of said partition suit, is the only one of importance in this case. This plat shows the shape and boundaries of lot F, which was set off to the Burnettes, and which cornered on the graveyard. This plat also shows the three-cornered strip subsequently deeded to the town of Newark by Crane and wife, in 1848, "for the sole purpose of being used as a burying ground for the use of said town of Newark and for no other purpose whatever."

In all these conveyances and proceedings the body of the

Newark v. Crane.

graveyard remained unchanged and undisposed of. Just when the graveyard was originally laid out as such is not disclosed, but it was a graveyard in 1871. It is not contended that it was ever deeded to any person or association for that purpose. The only deed is for the small three-cornered addition made in 1848. It is not contended or claimed that there was any statutory dedication or any proceeding to condemn or appropriate this ground for a graveyard and the right of the public to use it for such purposes arises, if at all, by way of common law dedication, based on the fact that the original owners permitted it to be used for that purpose.

On February 8, 1826, the town of Newark was incorporated, and the municipal authorities in November, 1868, prohibited any further burials in this graveyard.

On July 29, 1875, an ordinance was passed by the council of said town, among other things providing for notices to friends to remove the bodies buried therein by November 1 of that year, and authorizing the cemetery trustees to proceed after that date to have the bodies and tombstones removed.

On November 4, 1875, a resolution was passed referring the matter of removing the remains of parties buried in the old graveyard to a special committee consisting of the cemetery trustees and three citizens, which would indicate that the bodies had not been removed.

On September 20, 1877, a further resolution was adopted by said council, reciting the dilapidated condition of the cemetery, et cetera, and directing the trustees to expend some money to repair and improve the cemetery. These proceedings were reported to the cemetery board and it employed two persons to make a plat of the ground and graves, taking care to preserve the monuments and tombstones, so that the same and the remains might be removed and the ground leveled off. A plat was prepared, beginning with the year 1850, under date of 1878.

On April 14, 1882, the board of education of Newark instituted a proceeding against the trustees of Newark township and the city of Newark and the unknown heirs of Cummings,

Licking County Appeals.

Burnette, Crane and Schenck, to condemn the ground known as the old graveyard for a school house site. A jury was impaneled and a verdict returned assessing the value of the premises in three tracts aggregating $7,500. In that proceeding the then solicitor of the city filed what he called an answer, asserting that the city was the real owner.

The heirs of Cummings, Burnette, Crane and Schenck, also filed an answer alleging that they were the owners in fee of the property. The court ordered that when the money was paid in the respective rights thereto should be determined. The board of education never paid in the money and there the matter rested.

In 1888 the picket fence, which had been put up in 1878, was removed and put up in Cedar Hill Cemetery. Instead of removing the gravestones, as had been ordered in 1878, those doing the work laid them down in the graves and covered them up. One monument still remains standing. How many old graves are still in the ground can not be now definitely known; but the testimony shows that many of these graves and gravestones are very, very old.

In the reply and testimony in the Crane case it was shown that most of all the burials in the cemetery were before the date of 1848, and Mr. Vanatta says, "that with no burials since 1860 or 1868, very little can be left of any remains; all or nearly all have necessarily disappeared."

On September 11, 1905, the council of said city of Newark passed an ordinance selecting these grounds as a site for a proposed municipal hospital.

On March 6, 1906, these suits were brought by the city to quiet its alleged title in fee, claiming, in the Burnette case, that it has ever since November 20, 1868, been in the open, exclusive, adverse and visible possession of the premises involved in that suit (the Burnette suit), and has thereby become owner, and in the Crane case claiming ownership under the deed of the date of February 14, 1848. These claims the defendants absolutely deny.

In 1909, while these cases were pending and after the an

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