Error
to circuit court, Cuyahoga county.
Action
by the city of Cleveland against Gleason and others to enjoin
the erection of a soldiers' and sailors' monument on
the southeast quarter of a public square in said city.
Judgment for plaintiff. Defendants bring error. Reversed, and
petition dismissed.
Statement
by the Court:
The
plaintiffs in error, defendants below, were appointed by the
governor of the state commissioners, under the act passed
April 16, 1888, (85 Ohio Laws, 564,) for the erection of a
monument to the soldiers and sailors of Cuyahoga county in
the late war, and, in pursuance of the power conferred on
them by that act, have selected the southeast corner of the
public square in the city of Cleveland as the site for the
monument, and propose to build the same thereon. The city of
Cleveland objects, and claims that, without its consent
which has not been given, the site selected cannot be
appropriated to that use, and, furthermore, that the act of
the legislature is unconstitutional. The case, having been
determined in the common pleas, was appealed to the circuit
court, where, upon the trial, the court stated its
conclusions of fact and of law separately, and rendered
judgment for the plaintiffs. The findings are as follows
(parts deemed immaterial being omitted:)
‘
(1) That the Connecticut Land Company was in 1796, and for
some time prior thereto, the owner in fee simple of all the
lands now comprised within the limits of the city of
Cleveland. (2) That on or about the 1st day of October, 1796
the Connecticut Land Company caused a survey and plat and
allotment of what was then intended by said company to be the
city of Cleveland to be made, designating, as shown upon said
plat, the location of streets, alleys, and public places, and
the boundaries and number of lots. That said survey and map
were made for the purpose of selling lots designated and
numbered as aforesaid with reference to said plat and
allotment, and to dedicate to the public the streets, public
highways, and public places, as shown by said allotment
survey, and map. a copy of which map is attached to
plaintiff's petition and made a part of these findings of
fact. That afterwards, on the 6th day of November, 1801, the
Connecticut Land Company, being still the owner of said
lands, caused a resurvey of all the lands included in the
first plat and survey to be made, differing in no essential
particular from the first survey and plat, and recorded in
the office of the recorder of Trumbull county, the premises
at that time being within the limits of that county. This
resurvey and record were made in compliance and in conformity
with the act of the territorial legislature of December 6
1800, (1 Chase's St. 291, 292.) That said last map
minutes, and survey were subsequently recorded in the records
of Cuyahoga county on the 22d day of November, 1814, Cuyahoga
county having been organized in 1810. That upon the said map
and by said survey and resurvey there is marked and
designated a square space at the intersection of Superior and
Ontario streets, and in said survey the following language is
used as to such square space: ‘ The square is laid out
on the intersection of Superior street and Ontario street,
and contains ten acres. The center of the junction of the two
roads is the exact center of the square.’ There is no
other provision in reference to said square on said map or on
said survey. (3) When this original allotment was made no
streets extended into the square except Superior and Ontario
streets, which two streets extended through its center, or
nearly so, at right angles. In 1816, when the village of
Cleveland was incorporated, Euclid road was extended where
Euclid avenue now is from its intersection with Huron street
to the southeast corner of said square space known as the
‘ Public Square.’ For many years after this
allotment was made the public square was kept or permitted to
be an open space, and free to the public to walk or drive
upon, and to cross it as they saw fit. A traveled road way
existed across the southeast quarter of the square, and teams
and stage coaches to and from Buffalo to Cleveland, coming
along the Euclid road, passed diagonally across this section
of the square into Superior street near the center of the
square, and this roadway was so used until about 1838, when
the four sections of the square were inclosed with fences,
leaving a road way around, and Superior and Ontario streets
extending through the square. This condition continued until
about 1857, when fences were placed across Ontario and
Superior streets, and around the whole space known as the
‘ Square,’ except so much thereof on the four
sides of the same as was necessary for the purpose of
streets; and about ten years later, by order of the court of
common pleas of this county, the city of Cleveland was
ordered to remove so much of the fences as interfered with
the use of Superior and Ontario streets as public streets
through the square. From the year 1812 to 1830 there...
