2. BOUNDARY OF CITY LOT SURVEY. · DISCREPANCY BETWEEN PLAT AND MINUTES OF A plat of a city, as originally laid out, which was recorded, and by reference to which conveyances were made, showed that a particular lot at the intersection of two streets was not rectangular, but that the exterior corner had been taken off, and added to the width of one of the streets. The minutes of the original survey contained a statement of the width of the street, without showing that it was not of uniform width throughout, as in fact it was, as shown on the plat, except at this particular corner, where it terminated. Held, that the plat and minutes were not inconsistent, but that, even if contradictory, the plat would control as to the boundary of the lot, where it was the settled policy of the state, as shown by its statutes, to require the recording of plats of cities and towns. In Error to the Circuit Court of the United States for the Northern District of Ohio. M. G. Norton and Ford, Boyd & Crowl, for plaintiff in error. Before TAFT, LURTON, and DAY, Circuit Judges. DAY, Circuit Judge. This suit, having been removed from the state court, was tried in the circuit court for the Northern district of Ohio, to recover possession of certain real estate in the city of Cleveland. The petition is an ordinary one in ejectment for the recovery of real estate, and describes the premises as being "all that part of original lot 97 in the plat of the village of Cleveland (now the city of Cleveland) lying southwesterly of a line commencing upon the southerly line of Huron street, at a post standing sixteen rods and thirteen feet westerly from the intersection of the westerly line of Miami street with the southerly line of said Huron street, and drawn thence northwesterly direct to a point on the easterly line of Ontario street, distant twenty-five rods four feet southerly from the northwest corner of said original lot 97." The city of Cleveland interposed a general denial of the allegations of the petition, and set up that the land described was, on April 9, 1831, deeded by one Horace Perry to plaintiff in error for the use of a road or highway; that said deed had been duly recorded, and said city had accepted the grant, and continuously owned and kept said premises. To the answer of the city a reply was filed admitting that the premises in question had been deeded at the time claimed in the petition by said Horace Perry to the trustees of the city of Cleveland to be used as a road or highway, but denying that the city had held, kept, or used said premises for said purpose. John W. Wardwell, as receiver of the Cleveland, Canton & Southern Railroad Company, was originally a party to the suit, but the issues between the plaintiffs and said Wardwell were determined by a consent judgment, and the case went to trial to a jury as to the issues joined between the plaintiffs and the city of Cleveland. At the trial the plaintiffs abandoned all claim to a portion of the property described in the petition, and claimed a legal title and right of possession in a part of the premises, for which they recovered a verdict and judgment. From the testimony and the admissions of the pleadings, it appears that both parties claimed title. under Horace Perry, who, up to the time of the conveyance to the city on April 9, 1831, may be regarded as the owner of the property in controversy. It was evidently the purpose of Perry to deed so much of lot 97 to the city of Cleveland as is described in the petition and answer. The testimony in the case, without reference to certain maps of the city, the competency of which were controverted in the court below, shows that lot 97 was one of the original lots on the plat of the village, now city, of Cleveland, and can be best understood by reference to Exhibit A, with its accompanying minutes, which was admitted in testimony from the Cuyahoga county records, and Exhibit B, also admitted in evidence from the same source. Exhibit A. "Cleveland Survey, by Amos Spafford, in 1801. "Minutes of the survey of the outlines, roads, lands, and square of the city of Cleveland, as surveyed for the Connecticut Land Company in the year 1796, by Augustus Porter, said minutes retaken by Amos Spafford, surveyor, November 6, 1801: Said city is bounded as follows, viz.: Beginning on the lake shore, on the east bank of the Cuyahoga river; then eastwardly, on the shore of the lake, one hundred and two chains; then south, 34 degrees east, eighty eight chains and fifty links; then S., 56 degrees W., thirty-eight chains fifty links; then N., 34 degrees W., ten chains and 50 links; then S., 56 degrees W., to the bank of the Cuyahoga river; thence down said river as it winds and turns to the place of beginning, containing in the whole about five hundred and twenty acres, through which the following roads are laid, in the following manner (viz.): Bath street, so called, begins in the east bank of the Cuyahoga river, seven chains 50 links above where it empties into Lake Erie; thence N., 66 degrees E., thirty chains, to a large white-oak post standing in the west line of Water street; all the lands between said lines and the lake is included in said Bath street, and is from 3 to 5 chains wide. Water street is bounded by said post on the west side, and is one chain and 50 links wide, and runs from said post N., 34 degrees W., to the lake shore; then S., 34 degrees E., 29 chains to a white-oak post standing on the northwest corner of Superior street. Superior street is two chains in width, and begins at said last-mentioned post, and runs N., 50 degrees E., 50 chains and 50 links, to a white-oak post standing on the west line of Erie street. Erie street begins at the lastmentioned post, and is one chain and 50 links wide, and runs N., 34 degrees W., 32 chains, to the lake shore; then from said post S., 34 degrees E., 55 chains, to a white-oak post marked 'E. S. No. 133.' Ontario street begins at a post standing on the bank of the lake in the west line of said street. 24 chains east of the east line of Water street; then running S., 34 degrees E., 51 chains, to a post standing in the north line of Huron street; said street is one chain and 50 links wide. Huron street begins at a post in the north line of said street, on the east bounds of the city, 33 chains north by west from the southeast corner of said city; then running S., 54 degrees W., 53 chains, to the east bank of the Cuyahoga; said street being 150 links wide. Ohio street is 150 links wide, and begins at a white-oak post standing in the north line of said street, and in the west line of Erie street, 11 chains 50 links north of the south line of the city; then running south, 54 degrees W., 16 chains, to a white-oak post marked 'O. S. No. 117'; then turning at right angles, and running in the east line of said street twenty chains, to a white-oak post standing in the south line of Huron street. Lake street is 150 links wide, and begins at a white-oak post standing in the north line of said street, and in the west line of Erie street, 21 chains and 50 links north, 34 degrees west, from the northeast corner of Superior street; thence running S., 56 degrees W., 49 chains and 50 links, to a white-oak post standing in the east line of Water street. Superior lane begins at a post standing in the southwest corner of Water street and northwest corner of Superior street; thence running S., 77 degrees W., nine chains, to the Cuyahoga river; thence up the Cuyahoga river two chains fifty links: thence N., 72 degrees E., to a white-oak post standing in the center of Superior street on the west line of Water street. Union lane begins at the same post of Superior lane, is 100 links wide, and runs a west direction to the Cuyahoga. Mandrake lane is 100 links wide, and begins at a white-oak post standing in the north line of said road and west line of Water street, 13 chains south from the post standing at the southeast corner of Bath street, and running S., 56 degrees W., five chains, then nearly south, until it strikes Union lane. Vineyard lane begins at a white-oak post standing in the west line of said lane, being the southwest corner of Superior street; then running S., 12 degrees W., to the Cuyahoga river; said lane is 75 links wide. The square is laid out on the intersection of Superior street and Ontario street, and contains ten acres. The center of the junction of the two roads is the exact center of the square. The above-described city or plot is laid into 220 lots, of about two acres each, which contain what land is described in the outline, except about 50 acres lying in the bend of the Cuyahoga, which is bottom land, and not lotted out. For the particular numbers and boundaries of each lot reference is to be had to the field notes and maps in the register's office in the county of Trumbull or in the city of Cleveland. Recorded February 15, 1802, for me, John S. Edwards, recorder for Trumbull. I certify that the foregoing is a correct copy taken from Deed Book A, page 100, Trumbull county records, for A. Southerland, recorder. "H. H. Leavitt, Clerk. "Recorded Nov. 22, 1814. Horace Perry, Recorder. "(Deed Book A, page 484, Cuyahoga County Records.)" The testimony contains varying opinions of engineers as to the proper boundary of lot 97. There was also testimony tending to show that the Connecticut Land Company, for which company it appears that the original surveys and plats were made, by its trustees, had made a deed to Samuel P. Lord of lot 97 and certain other lots, in which they are described as follows: "The several tracts of land hereafter described, situated in Cleveland city, in Trumbull county, and territory northwest of the Ohio, viz. lots number 85, 86, 87, 97, 98, 99, bounded as follows: Beginning at a post where the south line of Superior street intersects the east line of the square of said city; running easterly, by said street, eight rods; thence southerly, to the southeast corner of lot No. 99, eighty rods, being the north line of Huron street; thence westerly to Ontario street; thence, by the east line of said street, to the said square, and following the lines of said square to the place of beginning." It was the contention of the plaintiffs below that lot 97 should in. clude within its boundaries, in addition to the land as shown on the plat, the triangular piece formed by extending the east line of Ontario street in a straight line to intersect the north line of Huron street. The testimony of the plaintiffs below tended to show that after the purchase from Perry of the portion of the lot lying southwest of the line described in his deed, as indicated on Exhibit B, the premises had been for many years occupied by Ontario street, except a small portion thereof, which the plaintiff's claimed the city had never accepted or had long since abandoned for street purposes, and which consequently, under the terms of the deed, had reverted to the plaintiffs, who were the heirs of Perry. This corner of the lot, claimed by the plaintiffs, is described as being "a piece of land triangular in shape, inclosed between the southwesterly line of Ontario street as now traveled, the northerly line of Huron street as originally laid out, and the easterly line of Ontario street as originally laid out, extended down 'Vinegar Hill,' so called; said piece of land running to a point at its northwesterly extremity." The court below submitted to the jury certain propositions of law, and the question of fact as to whether the plaintiffs were entitled to recover this triangular piece of land, and the jury returned a verdict, awarding so much of the premises as is included in this triangular piece to the plaintiffs, and judgment was rendered accordingly. In order to recover in an ejectment suit, it has long been the settled law of the federal courts that plaintiff must show a good legal title in himself, and must recover, if at all, upon the strength of his own title, and not upon the weakness of that of his adversary. Watts v. Lindsey's Heirs, 7 Wheat. 158, 5 L. Ed. 423. In Sheirburn v. Cordova, 24 How. 425, 16 L. Ed. 741, it was held that, notwithstanding the statutes of a state making different requirements, ejectment or trespass to try title to real estate could be maintained in the United States courts only on a strict legal title. To the same effect are Fenn v. Holme, 21 How. 481, 16 L. Ed. 198; Foster v. Mora, 98 U. S. 425, 25 L. Ed. 191; Bagnell v. Broderick, 13 Pet. 436, 10 L. Ed. 235. The same general rules are recognized in Ohio. City of Cincinnati v. Hamilton Co. Com'rs, 7 Ohio, pt. 1, pp. 88, 89; Eggleston v. Bradford, 10 Ohio, 312. The Ohio Civil Code (section 5781, Rev. St.) provides that, in an action for the recovery of real property, it shall be sufficient if the plaintiff state that he has a legal estate therein, and is entitled to possession thereof, etc. It was therefore essential that plaintiffs establish, before they were entitled to recover in this action, a legal title to the premises in controversy, or, at least, to so much thereof as they finally claimed when the case was submitted to the jury. In the view we take of the case, it is only necessary to determine whether the premises recovered are a part of lot 97. Looking at the plat, as shown in either Exhibit A or B, there is apparent an undertaking |