Abbott v. Inhabitants of Cottage City. in this State on account of transactions occurring entirely in Connecticut; nor are the rights of the plaintiff greater because his intestate, who was injured in this transaction, was a citizen of this Commonwealth. Whitford v. Panama R., 23 N. Y. 465, 472; Richardson v. New York Central R., ubi supra. The ruling that the action could be maintained was therefore erExceptions sustained. roneous. NOTE BY THE REPORTER.—The adjudications on this point, reported in this series, may be classified as follows: 1. Where the statutes in both States give the remedy. The suit is main. tainable in either State. Morris v. Chicago, etc., Ry. Co., 65 Iowa, 727; s. C., 54 Am. Rep. 39; Boyce v. Wabash R. Co., 63 Iowa, 70; s. c., 50 Am. Rep. 730; Leonard v. Col. St. Nav. Co., 84 N. Y. 50; s. c., 38 Am. Rep. 491; Knight v. West Jersey R. Co., 108 Penn. St. 250; s. c., 56 Am. Rep. 200. Contra, holding that the accident and place of suit must be in the same State: Willis v. Mo. Pac. Ry. Co., 61 Tex. 432; s. c., 48 Am. Rep. 301; McCarthy v. Chicago, etc., Ry. Co., 18 Kans. 46; s. c., 26 Am. Rep. 472. 2. Where the State in which the accident occurred gives the remedy, but the State where suit is brought does not. The suit is not maintainable. Vauter v. Mo. Pac. R. Co., 84 Mo. 679; s. c., 54 Am. Rep. 105; Taylor's Adm'r v. Penn. Co., 78 Ky. 348; s. c., 39 Am. Rep. 244. Contra: Herrick v. Minn., etc., Ry. Co., 31 Minn. 11; s. c., 47 Am. Rep. 771. 3. Where the State in which the suit is brought gives the remedy, but the State in which the accident occurred does not. The suit is not maintainable. Limekiller v. Hannibal & St. J. R. Co., 33 Kans. 83; s. c., 52 Am. Rep. 523; Debecoise v. N. Y., etc., R. Co., 98 N. Y. 377; s. c., 50 Am. Rep. 683; Hyde v. Wabash, etc., R. Co., 61 Iowa, 441; s. c., 48 Am. Rep. 820; Willis v. Mo. Pac. Ry. Co., 61 Tex. 432; s. c., 48 Am. Rep. 301; LeForest v. Tolman, 117 Mass. 109; s. c., 19 Am. Rep. 400. See note, 87 Am. Rep. 160. ABBOTT V. INHABITANTS OF COTTAGE CITY. (143 Mass. 521.) Highway - dedication acceptance. Where land was dedicated for a town park, a statute or vote of the town is not essential to constitute acceptance, but proof of public use as a park for many years will suffice. (See note, p. 146.) PROG ROCEEDINGS to assess damages on taking of land for a street. The head-note shows the point. The petitioner had judgment below. Abbott v. Inhabitants of Cottage City. T. M. Stetson & H. M. Knowlton, for respondent. L. W. Howes, for petitioner. HOLMES, J. 1. The first exception before us is to the exclusion of evidence, that from fifteen to nineteen years ago, the premises were dedicated to the public as a public square, that the dedication was then accepted by the public, but not under any statute or by vote of the town, and that public use of the premises as a park had continued down to the present time. The court ruled that no such dedication was possible in Massachusetts. We are of opinion that this ruling cannot be sustained. The principle of dedication, although of ambiguous origin, has been recognized in this State as in force here before the statutes of 1846, chapter 203 (Pub. Stats., chap. 49, § 94), and as still in force in cases not within the terms of that statute. Tyler v. Sturdy, 108 Mass. 196; Hobbs v. Lowell, 19 Pick. 405. Notwithstanding the able opinion in Pearsall v. Post, 20 Wend. 111; s. c., 22 Wend. 425, so far as that tends the other way, it is now generally admitted that open squares in towns are as much within the principle referred to as highways, and it has been held in numerous decisions that such squares may be dedicated to public uses. Commonwealth v. Fish, 8 Met. 238, 243; Cincinnati v. White, 6 Pet. 431; New Orleans v. United States, 10 Pet. 662, 713; Watertown v. Cowen, 4 Paige, 510; Cady v. Conger, 19 N. Y. 256, 261; Abbott v. Mills, 3 Vt. 521, 526; Commonwealth v. Rush, 14 Penn. St. 186; Rowan v. Portland, 8 B. Mon. 232, 248; Methodist Episcopal Church v. Hoboken, 4 Vroom, 13; 4 C. E. Green, 355; Bayonne v. Ford, 14 Vroom, 292; Princeville v. Auten, 77 Ill. 325; Grogan v. Hayward, 4 Fed. Rep. 161; 3 Kent Com. 450, 451. The Massachusetts statute only applies to certain classes of ways, Tyler v. Sturdy, ubi supra, and we see no reason to doubt the suggestion of Mr. Washburn, that "the law remains, it would seem, as at common law, in respect to public squares and other subjects of dedication," especially in view of the fact that our statutes more than once have recognized the existence of parks "dedicated to the use of the public." Stats. 1875, chap. 163, § 1; 1877, chap. 223, § 1; Pub. Stats., chap. 54, §§ 13, 16; Washb. Easements (4th ed.). 235. See also Pub. Stats., chap. 116, § 35; chap. 27, §§ 9, 12. 50. Abbott v. Inhabitants of Cottage City. square would But we do not park or square, Of course a case could be imagined in which the have to be regarded as only a part of the highway. understand that there is any doubt that this is a properly so called; and it would hardly be contended that such parks and squares are within the statute of 1846. Oliver v. Worcester, 102 Mass. 489, 495; s. c., 3 Am. Rep. 485; Clark v. Waltham, 128 Mass. 567; Veale v. Boston, 135 Mass. 187, 189. If there has been a dedication by the owner, it is plain that acceptance by express vote of the town in which the park lies is not necessary. But it is perhaps fair to assume that the defendant's offer of proof did not embrace any act on the part of the town, or of its officers, indicating an acceptance by it. In the case of highways, there is no doubt that an acceptance by the town. must be proved. Nor has any distinction been taken between what is necessary to make the town liable for a defect, and what is sufficient to deprive the owner of his rights. Bowers v. Suffolk Manuf. Co., 4 Cush. 332, 340; Morse v. Stocker, 1 Allen, 150, 153; Durgin v. Lowell, 3 Allen, 398, 400; Hayden v. Stone, 112 Mass. 346, 351. Compare Hoboken Land Co. v. Hoboken, 36 N. J. L. 540, 545. But the requirement of such an acceptance, in this State at least, has always been put on the ground that the town is bound to repair the highway when established, and that it ought not to be subjected to that burden without its consent. Powers v. Suffolk Manuf. Co., ubi supra. There is no such burden in the case of a public park. Oliver v. Worcester, Clark v. Waltham, and Veale v. Boston, ubi supra. And as the use is in the public at large, it is hard to see how an acceptance by the town can be declared necessary, except upon grounds which are hardly definite enough for judicial decision, however they might be regarded by the legislature. The principle laid down in King v. Leake, 5 B. & Ad. 469, that the refusal of a parish to adopt a way does not necessarily prevent its being public, although departed from in the case of ways, is law here when no special reason is shown for requiring the town's assent. It will be understood that we are not considering the effect of an acceptance by the town as completing a dedication, or as affording evidence that it was complete, but only whether such an acceptance is necessary to complete it. The necessity of acceptance, in any form, of a gift to public uses has been a little over-insisted upon, perhaps, from a desire to bring VOL. LVIII - 19 Abbott v. Inhabitants of Cottage City. the doctrine of dedication within some more general principle of law. But apart from the considerations especially applicable to highways, which have been mentioned, it has been admitted that the so-called acceptance which is deemed necessary may be indicated by common user. Holdane v. Cold Spring, 21 N. Y. 474. See Larned v. Larned, 11 Met. 421 (before the statute of 1846); Hayden v. Stone, ubi supra; Green v. Chelsea, 24 Pick. 71, 80. Or as we think it better put notwithstanding the observations in State v. Atherton, 16 N. H. 203, 210, acceptance will be presumed if the gift is beneficial, and use is evidence that it is beneficial. Guthrie v. New Haven, 31 Conn. 30s, 321; Hall v. Meriden, 48 Conn. 416. 431. The English law seems to be, that a gift to and use by the public completes the dedication. The cases do not speak of acceptance in terms, so far as we have noticed. Regina v. Petrie, 4 El. & Bl. 737, 743; Healey v. Batley, L. R., 19 Eq. 375, 392; The Queen v. Bradfield, L. R., 9 Q. B. 552; Vernon v. Vestry of St. James, 16 Ch. D. 449; Cincinnati v. White, 6 Pet. 440. And it is held in some States that no acceptance is necessary in order to vest the right in the public. Methodist Episcopal Church v. Hoboken, 4 Vroom, 21; Hoboken Land Co. v. Hoboken, ubi supra. We have not considered whether the statute of 1882, chapter 154, should be taken to put an end to common-law dedication of parks after its passage, because the evidence might have warranted a finding that the dedication was complete before the passage of that act. It is familiar law that no particular length of time is necessary to make a dedication binding. If the petitioner's land was dedicated to the public for the purposes of a park, the fact was admissible to affect the amount of damages to be allowed for the new use of the surface. Without citing more of the innumerable cases to be found in the books, or laying down any proposition broader than is necessary for our decision, we are of opinion that the evidence offered should have been submitted to the jury. [Minor point omitted.] -- Exceptions sustained. NOTE BY THE REPORTER. See Manderschid v. Dubuque, 29 Iowa, 73; s. c., 4 Am. Rep. 196; Buchanan v. Curtis, 25 Wis. 99. Evidence of the use of land for a street for many years, and that the defendant made a sidewalk on a part of it, justifies a finding of dedication, without any formal acceptance. Pomfrey v. Village of Saratoga Springs, 34 Hun, 607. To the same effect, Porter v. Village of Attica, 33 Hun, 605; Flack ▾. Village of Green Island, 22 Week. Dig. 534. Abbott v. Inhabitants of Cottage City. **Such acceptance may be proved by long public use, or by the positive acts of the public authorities in recognizing and adopting the highway." Cook v. Harris, 61 N. Y. 448. "It is not necessary that there should be any formal act of acceptance by the public authorities, but it may be indicated by common user under circumstances showing a clear intent to accept and enjoy as such the easement proposed to be dedicated." Holdane v. Cold Spring, 21 N. Y. 474; People v. Lohfelem, 102 N. Y. 1. Dedication may be presumed from a continued use of the place for a considerable period of time as a public highway, with a knowledge thereof by the owner, and without objection on his part. Carr v. Kolb, 99 Ind. 55. The same doctrine where a road, at the request of a land owner, deflected slightly from the established line, and was thus opened and worked for fourteen years. Ryan v. Kennedy, 62 Iowa, 37. "Acceptance may be shown by user by the public, and by an actual assumption of care and control by the public authorities, as by grading or working 'No formal act of the corporate authorities upon it." * * * is neces sary." Brakken v. Minn., etc., Ry. Co., 29 Minn. 41. To the same effect, People v. Blake, 60 Cal. 497; State v. Sullivan, 70 Ala. 589; Landis v. Hamilton, 77 Mo. 554; Buchanan v. Curtis, 25 Wis. 99. But the doctrine is not predicable of unoccupied and uninclosed lands. Herhold v. City of Chicago, 108 Ill. 467; Cyr v. Dufour, 68 Me. 452. 2 Dill. Mun. And dedication is not established by mere user, unless for a period sufficient to establish title by prescription, and in an adverse manner. Corp. (3d ed.) 641, note; Steele v. Sullivan, 70 Ala. 589. In Irving v. Ford, Sup. Ct. Mich, April 14, 1887, it was held that merely passing or travelling over land for any length of time will not convert it into a public highway. It must have been accepted as such by the public authorities, and when the public already have a highway through a village 100 feet wide, as laid out by the United States officials originally, and sufficient for all the ordinary purposes of travel and business, the evidence to show that such highway to the width of 130 feet had been accepted must be unequivocal and satisfactory: and evidence that the houses had been built back from the original line of the road, and that sidewalks had been laid by the owners beyond the original line by order of the village, will not be sufficient. The court said: "In order to constitute a dedication by user, or in any other manner, two things must exist: 1st, an intention, express or implied, to dedicate, that is, either a grant or relinquishment of the land to the use of the public; 2d, it must be accepted by the public authorities having jurisdiction as a public highway. It is not claimed that there was any express dedication or grant to the public of the land in question. But it is claimed that the long-continued use by the public as a highway, without objection or protest from the owners, not only implies an intent to dedicate to the use of the public as a highway. but is also evidence of its acceptance as such. A careful examination of the testimony has led us to a different conclusion. Here was a legally laid out highway, 100 feet in width, which was ample for any use the public might have through a village of 800 inhabitants, as this village was shown to con |