The opinion of the court was pronounced in'this case, on the 22d of November, 1847, by
Rost, J..The'plaintiffs complain tliat the council of tlie town of Carrollton have caused to be demolished certain fences and enclosures erected by them opposite to, and at the upper end of, First street, on the line of Canal avenue, at the intersection of Levée and Madison streets, and on Hampton street opposite Dublin street, all those'fences and enclosures being, as they allege, on their property, within the incorporated limits of said town. They pray that the corporation be forever enjoined from disturbing the fences and enclosures they may erect around the same ground, and adjudged to pay damages-for their illegal acts.
The defendants admit the acts charged against'them, bat aver their legality, on the ground that the places enclosed'had long previously Been dedicated to puBlic use By the plaintiffs, and tliat tlíe corpórators of the city of' Carrollton, and all other persons, have notoriously used and enjoyed them as sUohfor more than ten years before the institution of this suit. They further- allege that the plaintiffs sold at auction fots on Dubfin street! and represented as public places on the plan adduced at the sale those portions of ground which they have since-attempted to enclose; and that the town of Carrollton, and'many of the corporators, have acquired town lots on Dublin street with reference to that plan. They ask for judgment in their favor; and' setup in reconvention a claim for damages. They obtained judgment with $250 damages, and the plaintiffs-appealed..
*283We agree with the plaintiffs counsel -that the plaintiffs were not bound by , , . ,, their charter-to continue First street to the Mississippi river, and that they might originally have enclosed-their grounds-, so as to retain the exclusive ownership of them ; but they cannot now, without a breach of good faith to the public and to individuals, resume the possession of that portion of them which they have deliberately dedicated for streets, or over which the public has notoriously exercised a right of passage during more than ten years. City of Cincinnati v. Lessee of White, 6 Peters, 439. Barclay et al. v. Howell’s Lessee, 6 Peters, 498.
enclose the portions of it not occupied 'by the railway. The eastern side of First street, from Madison street to Canal avenue, ha,s 'benn notoriously used as a public road for more than ten years. This -would give the public aright of way without any dedication. The plan on which the plaintiffs sold town lots on Dublin street represented that street as opened from the western line of Second street to the prolongation of the eastern line of First street. It also represented First street as opened in its whole breadth, except so far as occupied by, the railways between the car-house and Canal avenue. From -thatline-to Madison street the eastern side only can be considered as an open lawn, the western side ‘being occupied by the buildings and shops of -the company. The purchasers of'lots on Dublin street purchased with reference to that plan, and the plaintiffs have no right to
The plaintiffs had the right to enclose that portion of their ground forming the western side of the continuation of First street, between Dublin and Madison streets, and on that ground the judgment must be reversed.
The judgment is therefore reversed; and it is ordered that the defendants be forever enjoined from disturbing the fences and enclosures which the plaintiffs may erect on the western side of their car-house and of their railways, as they may at any time exist between Dublin and Madison streets. It is further ordered that the defendants pay the costs jn both courts; and that the remainder of the plaintiffs’ claim b.e dismissed.