For reasons indicated in the brief statement following I do not agree that the judgment should be reversed. It appearing from the allegations in the petition that the county had permanently abandoned the use of the square as a site for its courthouse, the allegations as to the understanding between Wright and the commissioners, and as to representations made by the commissioners to purchasers of lots delineated on the plat, should not be given effect in determining whether the demurrer should have been sustained or not. When such abandonment occurred, the dedication stood as one made to the public, without a reservation of any kind by the dedicator. Therefore the question in the case simply was one as to the effect which should have been given the words "public square" written on the plat by the dedicator, made a part of the petition. I think those words should be construed as showing the intent of the dedicator to be to devote the square to any lawful use the public might choose to make of it, not inconsistent with the use it was *Page 629 contemplated purchasers of the lots delineated on the map might make of such lots.
The conclusion reached by a majority of the court that, after the use thereof as a site for the courthouse had been abandoned, the square must be maintained as an open space, it seems to me, is not warranted by the fact that it was so delineated on the plat. The dedicator could not have used words which would have indicated more clearly, than did those used, an intention on his part to devote the square to any use the public might choose to make of it. The intention so indicated, it seems to me, ought not to be held to be defeated by his failure to define "public uses" on the map. Such a definition, if not broad enough to include every public use, might itself have operated to defeat his intention to devote the land to unrestricted use by the public, because it would have been construed as excluding every public use not within the definition. Therefore I do not think the intention of the dedicator, so clearly evidenced by the words he used, should be held to be controlled by the fact that the square appeared on the plat as an open space. The effect of so representing the square on the map, a majority of the court holds, is to devote it to use by the public as a street or highway only. That the dedicator did not contemplate such restricted use of the square is shown by the fact that he dedicated land for use as streets exclusively on all sides of it. That neither the dedicator nor any of the parties concerned expected that the entire square ever would be used for street purposes alone is shown by the fact, as alleged in the petition, that they contemplated that a courthouse would be built and maintained thereon. If the conclusion reached by the majority of the court is correct, after the county abandoned the use, as such, of the courthouse it constructed on the square, it could not have devoted it to any other public use, but, at the suit of the plaintiffs, could have been compelled to tear down and remove it from the square. Instead, I think, under such circumstances, the county should be held to have had a right, if it chose to do so, to devote the abandoned courthouse to the use of the public as a "rest room," or to any other use not inconsistent with the use it was contemplated the purchasers of the lots would make of the lots. In determining the intention of the dedicator, I think it should be borne in mind that he was devoting his property to permanent, and not to temporary, public use, and must have contemplated that a time might come when the public would wish to make other uses than were then made of such squares. If he contemplated such a time might come, and wished to make his dedication broad enough to meet the wishes of the public, I think he could not have chosen words more effective to do so than those he chose.