Hyperlawhypertext legal database Grinnell v. Kirtland 2 Abb. N. Cas. 386

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Grinnell v. Kirtland

2 Abb. N. Cas. 386 Court N.Y.C.P. English

Delivered by Larbemobe, J.

Contents

Majority

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GRINNELL v. KIRTLAND.
N. Y. Common Pleas; General Term,
1876.

Headnote

Dedication.—Highway.—Deed bounding on Street.
The question of dedication of land as a way is one of intent to be established by acts unequivocal and decisive in their character, and unmistakable in their purpose.[2]
This principle applies as between owners and purchasers, as well as in reference to the public.
The owner of land through which, as designated on a city map previously filed, ran an unopened street, along one half the width of which' ran a lane, conveyed the lands on each side the street to dif-. ferent grantees, bounding the grants by the center of the street [so called], reserving to the grantor and the grantor’s heirs, &c., and assigns, “a sufficient right of way through and along that part of . . . the street hereby conveyed . . . for all lawful purposes, to use the same as a public road,”—and the parties to the deeds, and those claiming under them, for twenty years afterward, used the lane under the express reservation, and the street was never opened by the public authorities.
Held, that there was no dedication of the street.
The rule in Fonda v. Borst (2 Abb. Ot. App. Dec. 155), that a purchaser of a lot designated and laid out on a map, as bounded by a street, is not entitled to have such street opened until it has been accepted by the public,—applies to urban as well as to rural property.
Appeal by plaintiff from a judgment on a trial by the court.
This action was brought by Helen L. Grinnell against Frederick S. Kirtland, Charles H. Kernel" and George B. Grinnell, to have One hundred and fifty-sixth street, in the city of New York, kept open as a street in front of her lands to its full width of sixty feet, and to have the defendants, Kirtland and Kerner, directed to remove, or cause to be removed, all fences
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or obstructions placed by them thereon, to set back their fences to the southerly line of the street, and to refrain from in any way obstructing the southerly half of said street, &c.
In the year 1851, Mrs. Lucy Audubon was seized and possessed of certain lands in the city of New York, known as “ Audubon Park,” lying between the streets and avenues designated on the map or plan of said city previously made (dated about 1807), as One hundred and fifty-fifth and One hundred and fifty-seventh streets and the Eleventh and Twelfth avenues. On said map a strip of land, sixty feet in width, was laid out as One hundred and fifty-sixth street.
In the year last mentioned, Mrs. Audubon sold the-lands fronting on One hundred and fifty-sixth street to different parties (her sons, Victor Gr. and John W.), making the center line of One hundred and fifty-sixth street the dividing line and the northerly and southerly boundary of the respective parcels thus conveyed. At the time of such sale there was a road or lane running through said lands, along that portion thereof which is shown on said map as the northerly part of One hundred and fifty-sixth street, and was used at the time of this action, substantially as the same was originally laid out for the convenience of the owners of property on the line thereof, being from twenty-five to twenty-seven feet in breadth, and wide enough for a carriage.[2]
In the deeds given by Mrs. Audubon as aforesaid, each of the grantees therein named covenanted and agreed that their grantor, his heirs and assigns, should be and were entitled to a sufficient right of way
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through and along One hundred and fifty-sixth street, thereby conveyed to said grantee, for all lawful purposes, to use the same as a public road.
The parties to this action, by sundry mesne conveyances, became the owners of the land in question, the plaintiff of the northerly, and the defendants of the southerly portion thereof.
The material part of the language of the deeds was as follows: in the description, these words, “Beginning at the line of high water mark on the Hudson river and the center of One hundred and fifty-sixth street; thence running easterly, along the center of One hundred and fifty-sixth street, to the center of Eleventh avenue ; thence northerly along the center of the Eleventh avenue.” ...
In the covenants, the following: “ And the said party of the second part hereto, for himself, his heirs, executors, administrators and assigns, doth hereby covenant and agree to and with the said party of the second part, her heirs and assigns, that the said party of the first part, her heirs and assigns, shall be and are hereby entitled to a sufficient right of way through and along that part or portion of the Twelfth avenue and One hundred and fifty-sixth' street, Eleventh avenue and One hundred and fifty-seventh street, hereby conveyed to said party of the second part, for all lawful purposes, to use the same as a public road.”
The complaint alleged that the defendants Kirtland and Kerner had obstructed the southerly half of the strip designated as. One hundred and fifty-sixth street, and taken possession of it so that it was impossible for plaintiff to use it as a street; and claimed that Lucy Audubon, by her deed, did, as between her and those claiming under her, dedicate the strip of land, to its full width, for a street,; and prayed judgment accordingly.
The answer alleged that this part of One .hundred
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and fifty-sixth street, as laid out on the map, had been closed by the commissioners of streets, &c., under an act of 1860. That the only way dedicated was the private road of the width of about thirty feet, which was still open.
The cause was tried before' Labbemobe, J., at special term, who found, as matter of fact, that defendants had taken possession of the southerly half part of the street laid out on the map; but that the use of the lane along and through the street obstructed by them.
Plaintiffs appealed to the general term.
A. P. Whitehead (Martin & Smith, attorneys), for appellant:
I. Upon and after the conveyances by Lucy Audubon to John W. and Victor GL Audubon, bounding the property conveyed, by the strip of land known as One hundred and fifty-sixth street, that strip of land became and was and is, subject to an easement and right of way for the benefit of the plaintiff and the other owners of the lands fronting on said street, to the full extent of its width (Taylor v. Hopper, 62 N. Y. 649 [affirming 2 Hun, 646 ]; White’s Bank of Buffalo v. Nichols, 64 N. Y. 65 ; Bissell v. N. Y. Central R. R. Co., 23 Id. 61; Wiggins v. McCleary, 49 Id. 346 ; Cox v. James, 45 Id. 557; Smyles v. Hastings, 22 Id. 217; O’Linda v. Lothrop, 21 Pick. 296 , 297; Matter of Fourth Avenue, 11 Abb. Pr. 189 ; Lozier v. N. Y. Central R. R. Co., 42 Barb. 465 ; Matter of Thirty-ninth street, 1 Hill, 191 ; Livingston v. Mayor, &c., 8 Wend. 85 -89 ; Wyman v. The Mayor, 11 Id. 486-494; Matter of Seventeenth street, 1 Id. 262; Matter of Lewis street, 2 Id. 472; Badeau v. Mead, 14 Barb. 328 ; Matter of One hundred and fifty-fifth street, 6 Hun, 486 ). (a.) As between Lucy Audubon and her grantees, her conveyances to them per se dedicated One hundred and fifty-sixth ■ street to their use as a street (Bissell v. N. Y. Central R. R. Co., 23 N. Y. 64 ,
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65 ; Dillon on Munic. Cor. 487). (5.) In this aspect of the case the question whether or not the deeds executed by Mrs. Audubon dedicated One hundred and fifty-sixth street as a public street, and whether or not that dedication was accepted by the public authorities, becomes immaterial; for if a valid easement or right óf way were granted and created by those deeds, it exists, and plaintiff is entitled to be protected in its enjoyment, irrespective of any question of dedication or of acceptance of the street by the public authorities ( Vide cases above cited). (<?.) The action of the commissioners of the Central Park in laying out certain streets, squares and public places in the upper part of the city, and in omitting to lay out One hundred and fifty-sixth street as a street on their map, cannot, as between plaintiff and defendants, affect nor prejudice her right to the easement and right of way in question (White’s Bank of Buffalo v. Nichols, supra, and ride cases above cited), (d.) It makes no difference in the rights of the grantee that her grant is to the center of the street, instead of being bounded on the street (Matter of Thirty-ninth street, 1 Hill, 191 ).
II. The strip of land in question having been laid out on the map of the city of New York as One hundred and fifty-sixth street, and having been made by Lucy Audubon the boundary of the lands conveyed by her to John W. and Victor Gr. Audubon, must be deemed to have been dedicated by her as a street (Vide cases above cited).
III. The laying out of the map of the city of New York, of the strip of land in question as One hundred and fifty-sixth street is, it is submitted, sufficient evidence, prima facie, of its acceptance (Badeau v. Mead, 14 Barb. 338 ).
IV. The reservation to herself and her heirs and assigns by Lucy Audubon, in the conveyance to John ■ W. and Victor G. Audubon, of the rights of way
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therein mentioned, does not affect nor impair the easement created by her in favor of her grantees and their assigns.
V. The road or lane running over and through One hundred and fifty-sixth street to the Eleventh avenue, constructed in 1852, was not in use nor in existence for over twenty years prior to the commencement of this action.
YI. The bill filed in this case is the proper remedy for the wrong complained of (Trustees of Watertown, 4 Paige, 510 ; Hill v. Miller, 3 Id. 554; Seymour v. McDonald, 4 Sandf. Ch. 502 ; The Mayor v. Stuyvesant, 17 N. Y. 34 , 43).
George C. Genet, for respondent:
I. The premises in question are within the corporate limits of the city. In Laws of 1807, p. 125, three commissioners were appointed, with exclusive power to lay out streets, roads, and public squares in the city, above a certain line, which corresponds with the present Eighth street, and to shut up any street or parts of streets previously laid out, but not accepted by the common council. The act further provides (section 4), that no plot laid out by the commissioners shall be divided by any public or open alley, lane, street or thoroughfare, after the streets around the same shall be opened (Underwood v. Stuyvesant, 19 Johns. 181 ). The commissioners named in this act laid out the city under it as far as One hundred and fifty-fifth street. In 1865 (Laws of 1865, chap. 565, also Laws of 1860, chap. 20Í), the legislature appointed new commissioners to lay out the city above One hundred and fifty-fifth street, and again prohibited the opening of all streets and roads not laid down on the new map {Laws of 1860, chap. 201, § 5), after the passage of that act. All the powers of the commissioners under the act of 1860, are transferred to the Central Park commissioners, by section 12 of the
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act of 1865. The prohibition of streets not laid down by the commissioners, by the acts of 1811 and 1865, are in full force as to all streets not laid down on the map of the Central Park commissioners. They adopted a map, and on May 13, 1869, ordered it to be filed. On this map the alleged One hundred and fifty-sixth street, at the point involved, does not exist as a street. The aid of the court. cannot be successfully invoked to make it so, in violation of the direct prohibition of the statute.
II. The complaint seems to be that defendants have trespassed on land belonging to the husband of plaintiff, and that they should be ordered to remove the fences, and to refrain from committing the same offense again. The defendant, George B. Grinnell, is willing, but it appears the fences were put there by the grantors of these defendants. This action, therefore, cannot be sustained without previous notice to defendants to remove, which is neither alleged nor proved (Conhocton Co. v. B. N. Y. & E. R. R. Co., 51 N. Y. 577 ).
III. The provision for the lane excludes the idea of any intention to dedicate the street. The lane has been located and maintained, with the consent of all parties, for twenty years. The premises in question are within the corporate limits of the city óf New York, where no one can establish a street without the consent and adoption of - the city authorities. The law vests the city with the fee of its streets,- and has prescribed the manner in which the fee is to be acquired, before which action it is not a public street.
IV. The street has never been opened or occupied as such ; therefore, never became a public street (Holdane v. Village of S. H., 21 N. Y. 479 ; Bissell v. N. Y. Central R. R. Co., 23 Id. 62). In an incorporated city private owners cannot make dedications of streets without the assent of the city authorities (Underwood v. Stuyvesant, 19 Johns. 186 ; Clements v. West Troy,
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16 Barb. 251 ). In a village, dedication not accepted in five years can be revoked (Lee v. Sandy Hill, 40 N. Y. 442 ). In 1865, the legislature provided for the laying out of the city above One hundred and fifty-fifth street, by the park commissioners (Laws of 1865, chap. 365). They made a map, before the commencement of this suit, upon which this part of One hundred and fifty-sixth street was not laid down as a street, and was thereby not accepted or was closed. It, therefore, ceased to be a street at that time, if it ever was a public street (Fearing v. Irvin, 55 N. Y. 486 ; Child v. Chappel, 5 Seld. 257). If the fence had been a nuisance before, upon this it ceased to be so (Drake v. Rogers, 3 Hill, 604 ; Anisbey v. Hinds, 46 Barb. 622 ).
V. An individual cannot claim the aid of a court of equity, to have a street opened that the law adjudges to be closed. This would be a short cut to the opening of the streets in cities. It would dispense with the services of the corporation counsel, but would not vest the fee of the land in the city, and would thus counteract the policy of the law. {a.) A court of equity has jurisdiction, to a certain extent, in cases of a public nuisance, but rarely exercises it, the offense being a misdemeanor, cognizable at common law by indictment. The remedy it employs is the injunction as a preventive. If the injury be already done the writ can have no operation, for it cannot be applied correctively so as to remove it (Palmer v. Mulligan, 3 Caines’ Cases, 313; Attorney-General v. N. J. R. R. Co., 2 Green’s Ch. 136). But this injunction could only be obtained in a suit by the attorney-general, and not by an individual (Bermondsey Vestry v. Brown, L. R. 1 Eq. Cases, 204). For there cannot be a dedication to a limited part of the public. The right to use the public highways are all public rights belonging to the people at large. They are not the private inalienable rights of each individual (Gould v. H. R. R. Co., 2 Seld. 540;
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Lansing v. Smith, 4 Wend. 21 ; People v. Vanderbilt, 25 How. Pr. 140 ; Getty v. H. R. R. Co., 21 Barb. 617 ). (b.) To be the .owner of land upon the highway does not give the owner any right in the highway superior to that of any other citizen. No one can have an action for a nuisance or obstruction of a common highway without assigning some particular damage to himself individually, independent of the general inconvenience to himself as one of the public (21 L. J. Ch. 159 ; 34 L. J. Q. B. 222 ; Willes, 73 ; 2 Exch. 316 ; Palmer v. Mulligan, 2 Caines’ Cases, 318 ; City of Rochester v. Curtis, 1 Clarke's Ch. 344; Fort Plain B. Co. v. Smith, 30 N. Y. 59 ). (c.) If this land was dedicated as a public street, as seems to be claimed all through the complaint and the exceptions, the city had a right to refuse to accept it, and the legislature had a right to close it (Underwood v. Stuyvesant, 19 Johns. 181 ). In this event no one would have had any right of way through the street (Wheeler v. Clark, 58 N. Y. 367 ). Wherefore the reservation in the deeds of Mrs. Audubon of “a sufficient right of way for all legal purposes to use as a public road.”
VI. The lane, as it now exists, has existed for many years. It was located and has been maintained by general consent, was recently re-arranged by plaintiff, and is, therefore, conclusive (Laverty v. Moore, 33 N. Y. 658 ; Vosburgh v. Teator, 32 Id. 567; Coon v. Smith, 20 Id. 394; Jackson v. Ogden, 7 Johns. 238 ; Baldwin v. Brown, 6 N. Y. 359 ; Pierson v. Mosher, 36 Barb. 81 ). There is no pretense that the lane is obstructed, or that it is not sufficient as a right of way to plaintiff for all practical purposes. The findings are the other way.
VII. But since plaintiff concedes this is not a public street, the only right the plaintiff could demand is á right of way. She would have no right in the soil, . no right to stop to beautify or improve or cultivate it.
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It belongs to the owner of the fee, who can use it for any purpose, put fences along it, or a gate across it, so as a free and sufficient right of way is left (Capers v. McKee, 1 Strobh. 164; Johnson v. Kinnicutt, 2 Cush. (Mass.) 153 ,156 ; Bloomfield v. Gas Co., 62 N. Y. 388 ). When a fence is not an obstruction to travel it cannot be considered a nuisance (Griffith v. McCullum, 46 Barb. 561 ; Wetmore v. Tracy, 14 Wend. 250 ).
VIII. Plaintiff alleges no damage, therefore cannot maintain an action (Francis v. Schellhoff, 53 N. Y. 185 ).
The opinion of the learned judge at special term, which was approved by the general term, was as follows :

[After stating the facts.]—No map of said premises was ever made by Mrs. Audubon. No proceedings have ever been taken by the public authorities to open said street, and on an official map recently made, this strip of land is not laid out as a street, and does not appear thereon.

This fact summarily disposes of the question as to the right to have and use said strip of land as a street.

The plaintiff claims, however, that by the boundaries contained in the deeds by Mrs., Audubon, there was a dedication of the land called One hundred and fifty-sixth street as and for a street, and that the same is subject to an easement and right of way for the benefit of the owners of lands fronting thereon, to the full extent of the width thereof, and that it should be kept open for that purpose.

To this end she seeks the judgment of the court, and that defendants may remove all fences and obstructions from the southerly half of said street, and refrain thereafter from obstructing the same.

The question of dedication is one of intent, to be established by acts unequivocal and decisive in their

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character and unmistakable in their purpose (Hunter v. Trustees Sandy Hill, 6 Hill, 407 ; Carpenter v. Gwynn, 35 Barb. 395 ).

This principle is general in its application, whether construed as in favor of the public or as between owners and purchasers.-

Did Mrs. Audubon intend that a street of the width of sixty feet should be opened at once, and in any event, for the benefit of her immediate grantees, whether it should be accepted or not by the public authorities % Did those grantees so understand it, when, in the very instrument in which such dedication is alleged to have been made, is contained a reservation on her part and a covenant on theirs as to a right of way through,and along the street in question %

No demand appears to have been made on their part, or that of their successors in interest, xfor the opening and use of the street; on the contrary, the road reserved in the deeds has been used and accepted by them as sufficient for all purposes of ingress and egress to and from the lands in question for more than twenty years.

' It is evident, then, that the alleged dedication was qualified and not absolute. That it was intended to take effect only upon an acceptance by the public authorities.

But it is urged, with great force, that the question in dispute has already been adjudicated. That where an owner of city property - sells it in lots or parcels bounded on a street, whether open or designed, and by reference to a map made and filed, such act alone constitutes a dedication of the land included in the proposed street.

But in the cases relied upon to sustain this proposition, viz. : Livingston v. Mayor, &c., 8 Wend. 85 ; Wyman v. The Same, 11 Id. 487; In re Thirty-ninth street, 1 Hill, 191 ; and In re Seventeenth street, 1

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Wend. 262 ,- the question of acceptance was not in dispute.

These were cases arising upon assessments made for the opening of the streets by the public authorities, and the fact of acceptance was the basis of the whole proceeding.

The general term of the supreme court, in Badeau v. Mead ( 14 Barb. 328 ), after a review of the earlier decisions, holds, “ that a grant, whether inferential or direct, or whether to the public or to a private individual, is inefficacious until accepted by the grantee ; that the doctrine of dedication has been carried far enough and ought not to be extended.”

And the court of appeals, in Fonda v. Borst ( 2 Abb. Ct. App. Dec. 155 ), held, that a purchaser of a lot designated and laid out on a map, as bounded by a street, was not entitled to have said street opened until it had been accepted by the public. This decision makes no distinction between urban and rural property. .

The land in dispute not having been accepted by the public authorities, there was no dedication of it as a street, nor has there been any acceptance or use of it as a road to the extent mentioned in the allegation of dedication.

The plaintiff having the full and undisturbed possession and enjoyment of an easement or right of way accepted by the original grantee, and used by him and those claiming under him for over twenty years, cannot sustain this action. And judgment must be rendered for the defendants therein.

I think the decision of the judge below was correct. The appellant’s ’counsel conceded upon the argument that One hundred and fifty-sixth street had never been dedicated as a public street, and that they did not put their claim upon that ground; but

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upon the ground that, as between the parties to the deeds under which the plaintiff and the defendants derived their titles to the lands held by them respectively, a right of way to the extent of One hundred and fifty-sixth street, as that street is laid down upon the commissioners’ map of 1807, passed to the original grantors.

This is assumed to follow from the fact that Mrs. Audubon, when she conveyed the land in 1851 to her two sons in separate parcels, conveyed all on the north of the center line of One hundred and fifty-sixth street to her son, Victor Gr., and all on the south of that line to her son, John W., the plaintiff’s title being derived under Victor Gr., and the defendants’ under John W. Audubon.

It does not necessarily follow that because Mrs. Audubon bounded the lands conveyed to her two sons upon One hundred and fifty-sixth street, that the effect of it was to give to each of them a right of way to the extent of the designated street, whether it was accepted or not by the public authorities as a public street.

It was laid down upon the commissioners’ map of 1807 as a street; and in view of the possibility that it might be accepted by the public authorities and laid out as a street, she made out her conveyances in anticipation of an event that was not only possible but highly probable.

It never was, however, accepted by the public authorities ; but, on the contrary, upon the map of the city of the commissioners of the Central Park of 1869, who had authority from the legislature to lay out that part of the city in streets, it was omitted, and in the deed of the land conveyed to the plaintiff, and bounded by the north line of One hundred and fifty-sixth street, the street is declared not to be opened or laid out. No

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easement, therefore, or right of way to the whole extent of the land designated upon the map of 1807 as One hundred and fifty-sixth street, was ever acquired by the plaintiff under the deeds of Mrs. Audubon, or by any dedication or acceptance of it as a street.

When Mrs. Audubon conveyed the separate parcels to her sons in 1851, there was a lane, extending from the Eleventh avenue, and running along what is now the defendants’ land, and then across One hundred and fifty - sixth street, which about that time was abandoned, and, as would seem, for the general convenience of all parties, and with their implied consent, a new lane was substituted, running along the Eleventh avenue to One hundred and fifty-sixth street, and then along One hundred and fifty-sixth street, between what is now the lands of the plaintiff and the defendants, which lane on One hunhundred and fifty-sixth street is now twenty-five to twenty-seven feet in breadth, and wide enough for a carriage ; which lane has been substantially in the same place, and in use uninterruptedly as a public way since at least 1852.

This lane is now enclosed on each side with a fence, the defendant’s husband having been the first to put up a fence on the.plaintiff’s side, about fourteen years before the trial, which four or five years before the trial he moved a few feet, encroaching upon the lane.

The deeds made by Mrs. Audubon to her sons each contained a covenant that she and her heirs, &c., should have a sufficient right of way through and along the part of the Twelfth avenue and One hundred and fifty-sixth street then conveyed, for all legal purposes, to use the same as a public road; and the lane now in use, as a substitute for the former one, was made by Mr. Audubon, one of the grantees, in 1852, as would

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seem in conformity with and to carry out this covenant.

• If Mrs. Audubon meant that this easement or right of way should extend along the line and to the breadth of One hundred and fifty-sixth street, as that street was then laid down upon the map referred to, it was an easy matter to have said so, instead of using such language in her deeds as “a sufficient right of way for all legal purposes, to use as a public road,” which shows that what she meant was what already existed,—a sufficient public road through the land,—and which, immediately after her conveyance, was carried out by changing the old road or lane, and running it between the two separate pieces of land she had conveyed to her sons, and bounded by the center line of One hundred and fifty-sixth street, as that street was laid down on the pre-existing maps.

This lane the plaintiff has the enjoyment of in common with the public, and it is all the easement she has in the land lying between her and the defendants, beyond any right she may have acquired by the conveyance made to her husband by the executrix of John W. Audubon, which it is not material here to inquire into.

The judgment should be affirmed.

On appeal to the court of appeals the judgment was affirmed in February, 1877, without further opinion.

Note on Evidence op Dedication.

A highway can be proved to be such without producing the deed or record establishing it. Cook v. Harris, 61 N. Y. 454 ; 1 Whart. Ev. 96, § 77 ; citing Woburn v. Henshaw, 101 Mass. 193 .

But parol testimony that it was such, is alone incompetent, espec

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ially where it appears, that the place was never opened, worked or used as such. In such case there must be documentary evidence that it was laid out. Harrington v. People, 6 Barb. 607 .

Where it is sought to prove the existence of the highway, by the official proceedings to lay it out, it must appear on the face of the proceedings of the commissioners (or by proof aliunde), that they acquired jurisdiction in the particular case. Miller v. Brown, 56 N. Y. 383 .

A record, purporting to be the record of a highway, laid out by them, which fails to show affirmatively that jurisdiction was acquired, cannot be helped by intendment, based on the fact, that the commissioners were public officers acting in the discharge of a public duty, especially where the record is set up to justify an entry upon land, which, in the absence of a public right of way, was clearly a trespass. li.

The original record of the proceedings being void, the laying out of the highway was void, and an omission to appeal from the result of the proceedings does not preclude the person interested from contesting, in another action, the existence of a legal highway. li.

But, one joining in the petition and subsequently confirming the result, may be estopped from objecting to the validity of the proceedings. Trickey v. Schlader, 53 Ill. 78 . Compare Scott v. State, 1 Sneed, (Term.) 629.

Public documents of an ancient date, and papers of the party denying the dedication, which referred to the street as then existing, Held, competent. Kennedy v. Jones, 11 Ala. 63 .

To prove a highway, by dedication, three facts must be shown : intention to dedicate, an act of dedication, and an acceptance by the public. State v. Green, 41 Iowa, 693 ; Buchanan v. Curtis, 25 Wis. 99 ; S. C., 3 Am. R. 23; Manderschid v. Dubuque, 29 Iowa, 73 ; Cook v. Harris (above cited).

In some jurisdictions, mere user, sufficiently long continued, is enough to prove acceptance ; in others, there must be an official acceptance. Where mere user is enough, it must, according to some authorities, be for the statute period ; according to others, user sufficient to show that the public convenience requires the road, is enough. Buchanan v. Curtis, 25 Wis. 99 ; S. C., 3 Am. R. 23. And see Cook v. Harris, above, and cases there cited; Laws of N. Y. 1877, c. 465

And in some States it-is held, that if an intent to dedicate permanently is once adequately manifested, acceptance is not necessary to preclude revocation. The public have a right to accept, at a future time, as their wants require. Meth. Episc. Ch. v. Hoboken, 33 N. J. L. 13 .

The intent to dedicate may be presumed or inferred from long pub-

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lie user, with knowledge, on the part of the owner, who acquiesces. Wilson v. Sexon, 27 Iowa, 15 .

Acquiescence as well as knowledge must be shown. Daniels v. Chicago, &c. R. R. Co., 35 Iowa, 129 ; Sullivan v. State, 52 Ind. 309 .

Where the owner was absent when the way was opened, though he, on returning, did not close it, nor sue for trespass,—Bold, that there was no dedication. Kelly v. Chicago, 48 Ill. 388 .

The evidence from circumstances must be such as to indicate, not a privilege revocable at the owner’s pleasure, but a right exercisable without regard to his wishes. Beall v. Clore, 6 Bush (Ky.) 676 .

User by the public, not adverse to the exclusive claim of the owner, but under and in connection with his use in the manner desired by him, is not evidence of intent to dedicate. Talbott v. Grace, 30 Ind. 389 .

Thus, where ground is laid out as a private alley, allowing the public to pass and repass does not prove intent to dedicate it to public use. Hemingway v. Chicago, 60 Ill. 324 .

So, where the owner uses his own wharf property, his allowing the public to pass and repass is not evidence of intent to dedicate it. Boeres v. Strader, 1 Cinc. (0.) 59 ; Post v. Pearsall, 22 Wend. 475 ; affirming 20 Id. 111.

A mere parol expression of intention is not alone enough ; but, together with acceptance or acquiescence in the enjoyment by the public, may prove a dedication. Cook v. Harris, above; Robertson v. Wellsville, 1 Bond, 81 .

The acts of the owner, and the surrounding circumstances, are competent on the question of intention. Wood v. Hurd, 34 N. J. L. 87 . S. P., Harding v. Jasper, 14 Cal. 642 .

Declarations made before acquiring title, are not enough, without evidence of recognition after it. Nelson v. City of Madison, 3 Biss. 244 .

Acts and declarations contemporaneous with the alleged dedication, are more cogent than the testimony of the person, as to what was his intent. Columbus v. Dahn, 86 Ind. 330 .

Acts and declarations subsequent to manifested dedication, may confirm, but cannot usually revoke it. Compare Chapin v. State, 24 Conn. 236 ; Buchanan v. Curtis, 25 Wis. 99 ; S. C., 3 Am. R. 23.

Maintenance of obstructions across the way is competent to show absence of intent to dedicate. State v. Green, 41 Iowa, 693 .

To make out dedication by an agent, his authority should be shown. Nelson v. City of Madison, 3 Biss. 244 . Or subsequent recognition of his acts, by the principal. State v. Merrit, 35 Conn. 314 .

Where there is no expressed dedication, the question of intention

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is a mixed question of law and fact, to be determined by the jury, under instructions of the court. Wood v. Hurd, 34 N. J. L. 87 .

Stronger proof is required to establish a dedication in favor of the dedicator, as a ground of action by him, than against him. Rector v. Hartt, 8 Mo. 448 .

An expressed dedication of a part of a way, used by the public, rebuts the presumption of intent which might be drawn from user of the other part. Kelly v. Chicago, 48 Ill. 388 .

Where the act of dedication, on the part of the owner, is a proposition to the public authorities, expressed acceptance must be shown. Parsons v. Atlanta Univ., 44 Ga. 529 .

The adoption by the common council of a committee report, stating a dedication, is evidence of it against the corporation. Mayor, &c. v. Franklin, 12 Ga. 239 .

Acceptance may be proved by an act of the legislature of the State, or of congress. Hoadley v. San Francisco, 50 Cal. 265 .

User (short of the statute of limitations) without intention to dedicate, is not enough. Buchanan v. Curtis, 25 Wis. 99 ; S. C., 3 Am, R. 23.

The assessment or non-assessment of taxes on the property, is competent. See Irwin v. Dixion, 9 How. U. S. 10.

Repairing and "controlling may be proof of acceptance without formal action of expressed acceptance. Shartle v. Minneapolis, 17 Minn. 308 ; Rutland v. Dayton, 60 Ill. 58 .

Acts of the authorities in appropriating money or labor, are competent to show acceptance. Wright v. Tukey, 3 Cush. 390 .

Whether a prosecution for obstructing is evidence of acceptance. Compare 4 Am. R. 196, 202 ; Steph. Ev. 53.

That public acceptance of a part of a system of streets, laid out and dedicated) in anticipation of the future, may be a constructive acceptance of all,—see Town of Derby v. Alling, 40 Conn. 410 . And see State v. Trask, 6 Vt. 355 .

User to less than the entire width, may be sufficient evidence of acceptance to the entire width. Simmons v. Cornell, 1 R. I. 519 .

To prove user, evidence of a public plot, marking the land as a street, and that no taxes had been assessed thereon, is competent, even without bringing these facts home to the knowledge of the land owners. Tingley v. Providence, S R. I. 493. .

A deed by the city to an adjoining purchaser,—Meld, evidence. Mayor, &c. v. Franklin, 12 Ga. 239 .

Abandonment may be inferred from circumstances or presumed from long-continued neglect. Town of Derby v. Alling, 40 Conn. 410 .

p. 404
As to evidence of interruption of user,—see Connor a. Sullivan, 40 Conn. 26 ; S. C., 16 Am. R. 10.

Dedication does not necessarily divest the fee (compare 48 Ind. 178 ; 50 Cal. 171 ; 6 Hun, 486 ); it may be restricted to special uses. See Mowry v. Providence, 10 R. I. 52 ; Warren v. Grand Haven, 30 Mich. 24 ; Supervisors v. Ellison, 8 W. Va. 308 ; Princeville v. Auten, 77 Ill. 325 .

Cases cited