Opinion of the Court-McArthur, J.

of trust for all the lands donated to benevolent societies, public schools, public squares, etc. That a copy of the said map was made for the public use, that the same was kept and used by the city, and that on March 28, 1866, an ordinance was passed by the City Council, authorizing the Committee on Streets and Public Property to contract for the improvement of the public parks west of Seventh and south of Salmon streets, which includes the land in controversy.

If the position assumed by plaintiffs' counsel be correct, there could be no dedication to an unincorporated town or village, either by deed or in parol. The law is, that a parol dedication is not a grant; it is a right created in favor of the public, and is in the nature of an estoppel in pais. There need be no grantee in esse to take the fee, nor is it essential that the legal title should pass from the owner. (Beatty v. Kurtz, 2 Pet. 256; New Orleans v. United States, 10 Pet. 662; Dubuque v. Maloney, 9 Iowa, 450; Kelsey v. King, 33 How. Pr. 39; Town of Paulet v. Clark, 9 Cranch, 292; McConnell v. Lexington, 12 Wheat. 582.)

In New Orleans v. United States, just cited, the Court says that it is not essential that this right of use should be vested in a corporate body; it may exist in the public and have no other limitation than the wants of the community at large. We are of opinion that the acts of the city, by its council, show an acceptance on its part of the parcels. of land in controversy, if such formal acceptance were necessary. But a formal acceptance is not necessary. The acts of the inhabitants in the purchase of lots, the improvement of streets, etc., and their use, conclude the owner, and the corporation may insist upon every right which any of its inhabitants may have acquired by virtue of the original dedication. (Watertown v. Cowen, 3 Paige (N. Y. Ch.), 514; Dovaston v. Payne, 2 Smith's Ldg. Cases, 237, 241; Wyman v. Mayor of New York, 11 Wend. 499; Langley v. Gallipolis, 2 Ohio St. 107; New Orleans v. United States, 10 Peters, 713.)

The purchase of lots and improvement of streets, with reference to the Brady map or plat, were acts of acceptance of the streets and other public places, and indeed of the

Opinion of the Court--McArthur, J.

entire plan of the city as displayed upon the map. The fact that the city had not, before the alleged purchase by plaintiffs, used and improved the parcels of land in controversy, cannot redound to the advantage of the plaintiffs. It was not necessary that these particular pieces or parcels of land should have been improved or used prior to said alleged purchase in order to entitle the city to hold them. They were shown by the map adopted by Coffin, and by the city, to be public parks, and numerous and valuable private and public improvements were made with reference thereto, and thereby the dedication became irrevocable. As regards the improvement and use of public parks or squares, in like situation, it is sufficient if they are put to the use to which they are dedicated when the public convenience requires. In Rowan's Exrs. v. Portland, above cited, a case somewhat analogous to the one under consideration, the Court says that: "The dedication having been made and proved by the map, and the sales and conveyance of lots with reference to it, did not require a subsequent user to establish or prove it, and we are not sure that it could have been defeated or lost by non-user even for twenty years, except so far as it was ousted by an adverse use for that period. To say that a dedication to the use of the future town and of the public, made when the site of the town. was in a state of nature, would be lost if not followed by immediate and continued use, or should be limited to the extent to which it was thus used, would deprive the dedication of its intended value and would make it a mockery." The local authorities or the corporate guardians are the ones whose duty it is to improve, adorn and embellish the public parks, and where the dedication is irrevocable, as we hold it to have long since become in this case, they are the judges as to the time when the public health and public pleasure demand the use and enjoyment of the lands dedicated. The original owner, though he has the naked fee, has no right whatever to interfere with the premises except where the use becomes absolutely impossible, or where the corporate authorities seek to put the premises to some other use than that to which they were originally dedicated.

Opinion of the Court-McArthur, J.

Then he, as well as any lot-holder of the city, may proceed in equity to enforce the use according to the original dedication. (Barclay v. Howell's Lessees, 6 Pet. 498; Williams v. The Church, 1 Ohio St. 478; Webb v. Moler, 8 Ohio, 552; Board, etc., v. Edson, 18 Ohio St. 221; Harris v. Elliott, 10 Pet. 25; County v. Newport, 12 B. Mon. 538.)

We pass now to the consideration of the question as to whether the plaintiffs had notice of the claim of the public upon this land prior to their alleged purchase from Coffin and wife. The testimony shows that they knew that Coffin was the original proprietor of that portion of the city wherein the land in controversy lies. They knew also that he, together with the other proprietors, had laid out and established a town upon the "Portland land claim." They knew also that a town had been built upon said claim, which extended west beyond the public parks. They knew also that it had been built upon a plan indicated upon some other map than the one made by Coffin in December, 1867, and that no improvements had been made upon the "Park Blocks," as they are commonly called, throughout the entire length of the Coffin claim, while the blocks on both sides of the parks had been extensively improved. The testimony also shows that both plaintiffs were residents of the city prior to the date of the making of the map of "Coffin's Addition to the City of Portland." That Carter was a member of the City Council in 1866, when the ordinance authorizing the "Committee on Streets and Public Property" to contract for the improvement of the public parks was passed. That deeds from Coffin, conveying nearly all the lots and blocks lying in that part of the city, had been executed to different parties prior to December, 1867, and these deeds were of record in the proper office, and many of the lots and blocks were improved and occupied. That the map, according to which the conveyances were made, was the Brady map, copies of which were upon the walls of the public offices of the city and county, to which plaintiffs frequently resorted in transacting their business. That plaintiff Carter had been engaged in buying and selling real estate in said city, and had known this property for six

Opinion of the Court-McArthur, J.

or seven years; had owned property described by the Brady map; had in 1866 executed a deed to one Stinson to lot 4 in block 216 and lot 6 in block 238, according to the "maps and plats of the city of Portland," and that said lot 4 in block 216 faces the row of public parks, but is north of the line of Coffin's claim. That plaintiff Mason wrote the said deed to Stinson, and took the acknowledgment thereof in September, 1866. That Carter had heard of the park blocks and the Brady map before he purchased from Coffin in 1867. That both plaintiffs had engaged in conversations, in which the claim of the city to the property in controversy was alluded to, before they purchased. That plaintiff Mason, as notary public, took the acknowledgment of the Coffin map in December, 1867. That prior to said date he had seen the Burrage map, and had a copy of the McCormick or Directory map in his office, upon both of which the parcels of land in controversy were unnumbered and were designated as public parks, and were displayed as upon the Brady map. Finally, that the premises described were generally understood to be public property.

Passing from the facts, let us consider the law touching notice. It is a well-settled principle that to constitute notice, it is not necessary that it should be in the shape of a distinct and formal communication, and it will be implied where a party is shown to have had such means of informing himself as to justify the conclusion that he has availed himself of them. It has frequently been decided by the American as well as the English Courts, that whatever is sufficient to direct the attention of a purchaser to the prior rights and equities of third persons, so as to put him on inquiry into ascertaining their nature, will operate as notice. (Le Neve v. Le Neve, 2 Leading Cases in Equity, 160; Barnes v. McChristie, 3 Penn. St. 67; and Bohlman v. Carter, decided at the last term of this Court.)

Indeed, we think that notice should, with rare exception, be implied where a party is shown to have such knowledge as would superinduce further inquiry in an honest, conscientious man. In Rowan's Executors v. Portland, hereinbefore cited, Marshall, C. J., in delivering the opinion

Opinion of the Court--McArthur, J.

* * *

of the Court, uses the following language in relation to notice, which is singularly applicable to the case under consideration: "The notoriety, actual as well as legal, of the acts involved in the making of a town, the laying out of the town upon the land, the representation of it upon a map open to public inspection, the advertisement and sale of lots according to that plan, the conveyance of them by recorded deeds referring to the plan, the subsequent inclosure and improvement of some of them for business or residence, and, in fine, the actual existence of a town upon the land, must be considered as giving to the world such notice of the plan, to which all these acts and facts must have reference, as to preclude the possibility of afterwards acquiring from the original proprietor, or of asserting with a good conscience any right or interest inconsistent with those which, according to the plan of the town, are appurtenant to the lots, and are, therefore, granted to or held for the lot owners or citizens, and the local or general public." Applying these principles of law to the facts stated, we feel fully warranted in concluding that the plaintiffs had sufficient knowledge of the matters referred to, to charge them with full notice of the claim of the city of Portland to the parcels of land in controversy, prior to the date of their alleged purchase.

It was urged by plaintiffs' counsel that a dedication could not be predicated of the use of the Brady map by Coffin, for that the same was not of record. It is unnecessary to discuss this proposition at length, for it must be obvious, from the views already expressed, that to support a dedication of streets, alleys, public parks, etc., it is not necessary to show that the map upon which such streets, alleys, public parks, etc., were displayed, was recorded, but simply that it was used and referred to by the proprietor in selling the lots and blocks to which the streets, alleys, public parks, etc., are appurtenant.

The remaining questions are unimportant, and as the views already expressed are decisive of the case, they need not be discussed.

It follows that subsequent to the passage of the Donation