I concur with the majority of the court, that on a common law certiorari, this court will not only inquire into the jurisdiction of the inferior tribunal, but also into errors of law occurring on the trial, and affecting the merits of the case; but I disagree with them on the merits.
By the act of Congress of April 21, 1806, for the adjustment of titles to land in the town of Detroit, and territory of Michigan, and for other purposes' — 2 U. S. Statutes at large 398, the Governor and Judges of the territory, or any three of them, were authorized to lay out a town, including the whole of the old town of Detroit. A town was laid out by them, in- pursuance of the act, as appears by the evidence, and as was decided by this court in the case of the People v. Carpenter, 1 Mich. 273, And on the 27th April, 1807, having completed the plan •or a part of it, the Governor and Judges
“ Resolved unanimously, That the plan of the sections numbered 1, 2, 3, 4, 6, and 8 be confirmed, and be a record; that they be signed by the President of the Board, and attested by the Secretary in identification; and that no alteration be suffered therein, without an order of the Governor and Judges to that effect.”
The locus in quo is in section eight, mentioned in the resolution. The section or square is divided into lots, and is bounded on each side by a street. From the street on the north there is an alley running south to the centre of the square, where it is met by another alley running west from the street on the east side of the square. Lot No 1 is on the south east corner of the square, and is bounded on the east by lot No. 54, and on the north by lot No. 2, and the locus in quo or alley, which commences on the north line of lot one, next to lot 54, and runs thence *124north between the west line of lot 54 and the east line of lot 2* some fifty feet, when it deflects to the east, and opens into the aforesaid alleys at their junction in the centre of the square.
It is not necessary to decide whether the Governor and Judges, after the resolution of the 21th April, could make any alteration of section eight; for it is not pretended they ever did, unless it was done by‘certain conveyances subsequently made by them, which I shall presently have occasion to notice.
By laying out the town into lots,' to be donated or sold by them in pursuance of the act, with streets, alleys and public squares or parks, the latter were dedicated to the public. This is not controverted, but, it is said, to render the dedication effectual, or to give the public an interest in the streets, alleys and parks, there must have been an acceptance of them by the public. This is conceded on the part of the prosecution; but it is not necessary the acceptance should have been accompanied by immediate acts of user; or in other words the use of the thing dedicated by the public is not the only evidence of an acceptance. The doctrine of acceptance, or of the necessity of an acceptance, to make the dedication complete, rests on the principle that an individual can not impose on the public, without its consent, the burden of keeping a way laid out by him in repair. It is worthy of consideration whether acceptance, when there is a clear dedication, is necessary for any other purpose than to show this liability.
But when the power dedicating has the power to accept, as is the case when the government lays out a road over its own land, the act of dedication is- in itself complete, without the assent of any subordinate authority to give it effect.
The locus in quo, for aught that appears, belonged to the United States at the time the town was laid out by *125its authority; and if it was necessary, to give full effect to the dedication, that it should have been accepted by the territorial authorities, that was done by the Governor and Judges, in their legislative capacity, on the eighteenth of May, of the same year, by an act entitled, “An Additional Act concerning the Town of Detroit.” By this act it was provided, among other things, that in the avenues of the town, a space of ten feet should ,be allowed, contiguous to the front of lots, for purposes specified in the act; and that ten feet contiguous' to the last mentioned ten feet should be allowed for certain other purposes; and that in streets, not exceeding fifty feet in breadth, a space of seven feet should be allowed. And" by “ An Additional Act concerning the City of Detroit,” passed November 7, 1815, it was provided, that nothing should be erected within the ten feet mentioned in the previous act, exceeding fifty iuehes in height, excepting porches, &c., and the city which was incorporated as such on the 24th October preceding,' was authorized to make additional regulations. {Some of the Acts of the Territory of Michigan, with the titles, and a digest of all the Acts of said Territory. Printed by Theophilus Mettez, March 20th 1816, pp. 40, 41.*) In the case of The King v. Lyon, 5 Dow. & Ry. 497, it was held that where a way had been recognized as public in an act of Parliament for making streets, squares, &c., it was not necessary it should be adopted by the parish to make it a public way.
If any thing further was needed to show an acceptance of the dedication, we have it in a resolution passed by the Common Council of the city of Detroit, on the 2d December, 1835, directing the city clerk to take the necessary steps to have the plan adopted by the Governor and Judges, and signed by them in 1807, recorded in the county and city registers’ office. Here was a clear act of *126acceptance by tbe city itself, and tbe streets, alleys and public squares, designated on tbe plan, so far as they were extended over land belonging to tbe United States, then? if not before, became vested in tbe city for tbe purposes mentioned. But so far as the plan extended over the lands of third persons, it was wholly inoperative, as was held by this court in The People v. Jones, 6 Mich. 176; for the government can not, any more than an individual, dedicate what does not belong to it.
It is said the deeds, of lot 54 to Ann Dyson, and of lot 3 to Mary Desnoyer, were an alteration or revocation by the Governor and Judges of that part of tbe plan making the locus in §uo an alley. There are several answers to that objection.
1st. Tbe deeds were not executed until March, 1839, and the dedication was accepted by the Governor and Judges, in their legislative capacity, as I have already shown, on tbe 18th May, 1807.
2d. If tbe dedication could have been modified by the-Governor and Judges, after their resolution of tbe 27th April, 1807, it must have been in pursuance of a reservation of power for that-purpose in tbe dedication itself, or-as an incident to the power to lay out the town. The deeds to Mrs. Dyson and Mrs. Desnoyer were not the exercise of either of those powers, but of a power wholly different — a power to donate and sell lots in the town to be laid out by them. And,
3d. Tbe descriptions in the deeds of tbe lots conveyed, So far as they [ are repugnant to the plan of the town, are wholly nugatory and inoperative. Each of the deeds, is of a lot according to the plan of the town, stating the section, and the number of tbe lot; and in each case, in giving what purportsfto be a further description of tbe lot, one, of tbe linesjbounding tbe lot is made to exceed in length the same line on the plan, and to project half way across tbe alley, thereby including a triangular piece of *127the alley as a part of the lot. When the whole of a description of premises, intended to be conveyed, can not stand together by reason of one part being repugnant to another, and a part may be rejected and still leave a sufficient description, the rule is, that that which is most material and certain shall control that which is less so: —Jackson v. Camp, 1 Cow. 605; Doe v. Thompson, 5 Cow. 371; Jackson v. Moore, 6 Cow. 706. If we reject the plan, and the numbers of the lots mentioned in the deeds, the latter would be no better than blank paper; for the premises intended to be conveyed could’ not be identified from the balance of the description. Whereas, by retaining these, and rejecting the number of square feet each lot is described as containing, and the length of the south line of lot 3, and of the north line of lot 54, full force and effect are given to the deeds.
Besides, the resolution of the Governor and Judges, of 15th December, 1808, for the conveyance of lot 3 to Mrs. Desnoyór, and lot 54, to Mrs. Dyson, describes the lots by their numbers and sections, on the plan, and in no other Wciry.
The Recorder was requested to charge the jury, that if they were satisfied from the evidence that the locus in quo was not opened, marked, or used as an alley, prior to April 4th, 1827, when an act entitled “An Act relative to the city of Detroit” took effect, then the locus. in quo could not be opened and used as an alley by the city authorities, or by private persons, except on notice to the adjoining owners, and the adjustment and payment of damages to them, as provided by sections 18 and 19 of said act, and other similar acts. t
This request must have had its origin in a misconception by counsel of the purport and effect of the act referred to When an individual dedicates a road to the public, and it is accepted by the public, it immediately becomes a public *128highway, without any further act on the part of the public. To open a street or highway, in the ordinary acceptation of those words, means to acquire a public right of way, by the assessment and payment of damages to the person whoso land is to be taken for that purpose. In this sense, and no other, they are used in the act just mentioned. By the first section of the act, the city limits are made to extend three miles back from the Detroit river; and by the 13th, 14th, loth, 16th and I'lth sections, the Governor and Judges’ plan is recognized, and the Common Council of the city are authorized to make certain alterations therein, by re-laying out certain parts of the city, included within the plan — after having made provision by an ordinance, to be passed by them and approved by the freemen of the city, for compensating such as should be injured by the alteration. The 18th and 19th sections have no reference whatever to the streets and alleys on the Governor and Judges’ plan, but to streets to be thereafter laid out, within that part of the city limits not included in the Governor and Judges’ plan, and to such other streets, within the latter, as might thereafter become necessary, and did not come within the purview of the previous sections. It would be a new feature in legislation, hitherto unknown, to require the public to pay for what had been given to it.
The court was also requested to charge that, if the obstruction was in the locus in quo before the passage of the ordinance, and defendant had done no act since to maintain or keep it there, the jury must acquit him. I think the Recorder was right in refusing so to charge, and in charging that a failure to remove the obstruction, after the ordinance was passed, was itself an offense. To determine the reasonableness of the request, and the correctness of the charge, the evidence must be looked into, and the decision made with reference to it. The evidence tended to show the obstruction complained of consisted in a fence, erected by defendant, enclosing the alley with a lot owned *129by him for private occupancy, and that he continued to occupy the alley, claiming to own it, after as before the passage of the ordinance. Now occupancy, in such circumstances, without any other act, was a maintenance of the obstruction. It was not necessary defendant should have replaced a worn out or broken rail in the fence with a new one, after the passage of the ordinance, to bring him within its penal provisions. If the evidence presented a case of obstruction by earth, or other refuse matter; thrown in the highway by defendant to get rid of it, before the passage of the ordinance, there would have been something to have based the request upon, which there was not in the case before the court.
The plan of the Governor and Judges, and the record of their proceedings showing its adoption, and their subsequent conveyance of lots, were properly admitted as evidence. If it was necessary to give them validity they should have been reported to Congress, it will be presumed after the lapse of half a century.
Various other objections were taken on the trial, but I see no reason in any of them for reversing the judgment. The evidence shows a dedication and acceptance of the locus in quo as an alley, and the unlawful inclosure of it by defendant, and his possession and occupancy of it as private property since the ordinance was passed.
The defense was two-fold: First, That the locus in quo was not an alley, 1st. Because there was no dedication or acceptance of it, both of which are proved by the evidence. 2d. Because the plan of the town, so far as it respects the locus in quo, was changed by the Governor and Judges, before it was accepted by the deeds of March 7th, 1809, to Mrs. Dyson of lot 54, and Mrs. Desnoyer of lot 3. The deeds I have shown were executed after the acceptance of the dedication by the act of the 18th May, 1807. And further, that in law they convey *130no part of the alley; and were not intended by the Governor and Judges to convey any part of it, as appears by their resolution of the 15th December, 1808, authorizing the conveyances to be made. 3d. Because the locus in quo was not opened, marked or used, before the act of April, 1827, entitled an “Act relative to the city of Detroit.” It required no opening, for it became a public alley the moment the dedication was accepted, to be used by the public and the occupants of adjacent lots, when, and as, occasion should require. It needed no marking to vest the public with a right to it as an alley; for it was sufficiently designated on the plan of the town. The act had nothing to do with the plan of the Governor and Judges, as I have shoAvn, except to provide for the laying out of new streets, and the re-laying out of a part of the town that had been laid out by the Governor and Judges.
Second: The second ground of defense was, that the public had lost its right of way, by reason of the adverse possession of the locus in quo by defendant, and those under whom he claimed, for more than twenty years. The Recorder charged as requested on this point, and the jury rendered a verdict for the People, as they clearly should have done on the evidence before them. There was no evidence showing an inclosure of the whole alley before 1854, when it was enclosed by Jackson, after his purchase of lot 2 of James Williams. The alley, as I have already stated, runs between lots 2 and 54. Lot 2 was deeded, by the Governor and Judges, to Thomas Palmer, in 1831, and was described in the conveyance according to the Governor and Judges’ plan, without giving its metes and bounds. In 1832, Palmer deeded it to L’Etourneau, describing it as in the deed from the Governor and Judges to himself. In 1854, L’Etourneau deeded it to James Williams, describing it as fifty feet by eighty, and bounded on the east by a public alley, the alley in question; and Williams afterwards deeded it to defendant by the same *131description. L’Etourneau, in 1832, fenced in the whole oí the alley, except two feet next to lot 54, but he did not claim, or assume to own it / and in 1848, he put up a shop resting on blocks, on that part of the alley enclosed by him, after obtaining permission from Ghamp, who owned lot 1, and promising Ghamp to remove it when he should want to use the alley — Champ at that time passing over a part of lot 54, which was not fenced on the line of the alley, to get to the rear of his lot.
The ordinance is not ex post faeto, as was contended on the argument. Its penal provisions are prospective and not retrospective; and defendant is obnoxious to them not for fencing up the alley, which was unlawful at the time, but for continuing it fenced up, and thereby excluding the public from it, since the ordinance was passed.
I think the judgment should be affirmed.
Judgment reversed.
This is what is commonly called the “ Oass Code.