This is an action of ejectment to recover possession of block No. 15 in the town of Breckenridge. The answer is a general denial, and a special plea of the statute of limitation, and also that the former owners of the town site dedicated the block in question as a public square, by so marking it on the plat filed, and further, that said original proprietors, while yet owners, represented that they had dedicated it for that purpose, and thereby induced others to purchase lots fronting thereon at higher prices than would otherwise have been paid for them. The reply was a general denial, and on a trial of the cause plaintiffs had judgment, from which this appeal is prosecuted.
Plaintiffs’ evidence tended to prove that the land embraced in the town site was patented to Henry Gist, who conveyed it to plaintiff Price, as trustee and manager of the town company, consisting of Gist, "Wadlow, Terrill and Price; that by conveyances from Wadlow and the heirs of Gist and Terrill, except two minors, plaintiff acquired the title to all of the land, except the interests of said minor heirs of Terrill.
It was admitted that the original plat of said town *449was burned with, the court-house in 1860, and that there was no certified copy in existence.
Price testified that he never dedicated his interest in the block; that in posters advertising public sale of lots, in October, 1856, and July, 1857, it was stated that ground had been reserved for public use in case a new county should be formed with Breckenridge as a county seat, and, except in that manner, no dedication was ever made ; that on the plat it was simply marked 15, but the people were in the habit of calling it “ the public square.” One of the; posters accompanying his deposition contained clauses to the following effect: “Ample grounds have been reserved for public purposes,” and in one, “Ample grounds have" been reserved for county buildings, in case Breckenridge becomes a county seat.”
Dr. Bottom testified that his father bought a large number of lots at one of the public sales made by the town company, and that witness moved to Breckenridge soon after as agent of the property, and in 1862 asked Price for a plat of the town, and that he handed him a plat which had the words “ public square ” written across block 15; that this was in Price’s handwriting. He also introduced another plat on brown paper sent to him by Price in 1867, with “-public square” written in Price’s handwriting across block 15. That when he went to Breckenridge this block was lying out to commons, and so continued until 1867, when it was fenced and planted in trees by public subscription, and has ever since remained under the control of the town, and that he never heard of any attempt by the original owners or their grantees to exercise any ownership over the block. The town company never included this block in their list of property for assessment for taxes.
Hatfield testified that he was present in 1856 at a public sale of lots by said company, and that the auctioneer publicly announced that block 15 would not be sold, as it was reserved for a public square, and that he bought a lot *450fronting on said block, supposing it would be a public square. Rob’t Trosper testified tbat be was present at tbe sale, and beard tbe auctioneer announce tbat block 15 was for a public square.
A witness for plaintiff, Riol, testified tbat be was present at said sale, and tbat tbe auctioneer did not announce tbat block 15 was reserved for a public square, but tbat it would be reserved for public buildings in case tbe town became a county seat.
1. dedication TO püblic use. Tbe first and second instructions asked by defendant properly declared tbe law on tbe facts testified to by Bottom> Hatfield and Trosper, but tbe court refused one asked to tbe effect, tbat if block 15 was marked in tbe original plats of said town as a public square by tbe proprietors of said town, or'James A. Price, tbeir trustee, then plaintiffs cannot recover. If tbe plat was acknowledged by Price, as trustee, in pursuance of tbe conveyance to bim by Gist, tbis instruction should bave been given. "We infer from the- evidence tbat tbe tract was conveyed to bim before tbe plat was made, and tbat be, as vested with tbe legal title, executed and acknowledged tbe plat. So far as we can gather tbe facts from tbis record, tbat instruction should bave been given.
Tbe court also refused tbe following asked by defendant s
4. If tbe court finds from tbe evidence tbat James A. Price was trustee and manager of tbe Breckenridge Town Company, and tbat a plat of said town was filed in tbe recorder’s office of Caldwell county, which was afterward burned and destroyed at tbe burning of the courthouse in 1860; and if tbe court further finds tbat tbe proprietors of said town in 1856 made a public sale of town lots, and that it was announced by tbe auctioneer, publicly ? that block 15 was reserved for a public square; tbat Wm. R. Hatfield beard said announcement of said auctioneer, and thereafter, at said sale, purchased property fronting. on said block; and if tbe court further finds from tbe evi*451dence that afterward, in the year 1862, said James A. Price delivered to Mr. Bottom a plat of said town purporting to be a true plat thereof, on which said block 15 was marked as a public square; that afterward, in 1867, when requested to furnish a plat of said town, he furnished one on which said block was marked as a public square; and if the court further finds from the evidence that from and after the time of said public sale in 1856, up to the time the same was fenced by a public subscription of said town, said block was permitted to be out as public commons and that during said time neither the said James A. Price, nor the other proprietors of the town, exercised any acts of ownership over the property, and at the time the same was fenced no objection was made by said parties; then the court may infer from said facts and circumstances that said block had been dedicated to the public use, and the court should find from said conduct and acts of said James A. Price that he is now estopped and debarred from asserting or claiming any title or interest that he may have had therein at said time.
This instruction should also have been given. If the facts stated therein would not authorize a court, or a jury, to find a dedication, both as against the town company and Price, it would be difficult to conceive of a state of facts that would.
3. _. adverse possession. Other instructions asked by defendant predicating a right upon the inclosure of the block by a public subscription in 1868 or 1869, and the use of the same as a public square, claiming it as such, by the inhabitants from either of those dates to the institution of the suit, were properly refused. This suit was commenced in October, 1877, and possession from 1868 to October, 1877, was short of the time which by the statute barred plaintiffs’ claim. Nor were those facts alone suffi" cient to authorize a jury to find that the block had been dedicated to public use.
*4524. ejectment. *451There was manifest error in the judgment, by which *452plaintiffs recovered the entire block, while their own evidence showed that two of Terrill’s heirs had an undivided interest in the property, if there had been no dedication.
There is nothing in the point that the court’s attention was not called to this error. One of the grounds for a new trial set out in the motion is, that the “judgment is against the law and the evidence.” ■ This was sufficient.
The judgment is reversed and the cause remanded.
All concur.