advanced civilization, and which are essential to its accommodation. The importance of this doctrine may not always be appreciated, but we are in a great degree dependent on it for highways and streets, and for the grounds appropriated as places of amusement or of public business which are found in all our towns, and especially in our populous cities. The subject is, therefore, one which falls within the scope of the present work, and we have endeavored to present its leading doctrines with care and adequate fulness. Statutory and Common-Law Dedications. § 628 (491). Classes of Dedication. Dedications of land to public uses are divisible into two classes: 1. Statutory Dedications; 2. Common-Law Dedications. Statutory dedications are made, and it has been decided, can be made, only by pursuing substantially the course prescribed by the particular statute. Thus, if the statute requires that the map or plat describing the streets, alleys, commons, or other public grounds, shall be acknowledged before it is recorded, an acknowledgment is essential to a valid and effective dedication under the statute. The effect of a dedication under the statute is 1 Per McLean, J., in New Orleans v. United States, 10 Pet. 662, 712 (1836). Infra, sec. 631. As to the forums and public places in Ancient Rome, see ante, chap. i. sec. 3 a. Dedication is "the act of devoting or giving property for some proper object, and in such a manner as to conclude the owner." Beardsley, J., Hunter v. Sandy Hill Trs., 6 Hill (N. Y.), 407, 411 (1844). See Dovaston v. Payne, 2 Smith Lead. Cas. 142, and notes, for a general view of the law of dedication. There is an excellent view of the subject in Angell on Highways, chap. iii. See, also, chapters on Property and Eminent Domain, ante, and chapter on Streets, post. 2 Wisby v. Bonte, 19 Ohio St. 238; Fulton v. Mehrenfeld, 8 Ohio St. 440 (1858), questioning the grounds of prior decision in Morris v. Bowers, Wright (Ohio), 750; Williams v. First Presb. Soc. in Cinc., 1 Ohio St. 478; Winona v. Huff, 11 Minn. 119 (1866); Baker v. St. Paul, 8 Minn. 491 (1863); Schurmeier v. St. Paul & Pac. R. R. Co., 10 Minn. 82 (1865), affirmed in Supreme Court, 7 Wall. 272 (1868); State v. Hill, 10 Ind. 219 (1858); Hays v. State, 8 Ind. 425; Noyes v. Ward, 19 Conn. 250 (1848); Des Moines v. Hall, 24 Iowa, 234 (1868). See Ragan v. McCoy (requisites of acknowledgment), 29 Mo. 356 (1860); Detroit v. Det. & Milw. R. R. Co., 23 Mich. 173 (1871); Baker v. Johnston, 21 Mich. 319 (1870). If the plat as recorded, pursuant to a statute requiring it, contains enough to show that it was intended by the owner to be a dedication under the statute, it would seem to the author to be right, notwithstanding a defective acknowledg ment, or the like, to hold the proprietor estopped to make the objection that he did not comply with the statute. See Hurley v. Boom Co., 34 Minn. 143; Gebhardt v. Reeves, 75 Ill. 301 (1874). Other considerations would apply where statutory requirements for the benefit of the public are not observed by the dedicator. Authentication of town plats and maps, nature of evidence necessary, &c., effect of unrecorded map, &c., see Commonwealth v. Alburger, 1 Whart. (Pa.) 469; Biddle's Lessee v. Shippen, 1 Dallas, 19; Franey v. Miller, 11 Pa. St. 434; Commonwealth v. Wood, 10 Pa. St. 93; Baird v. Rice, 63 Pa. St. 489 (1871); Winona v. Huff, 11 Minn. 119; Ragan v. McCoy, often declared. Thus, if it be provided by statute that the map or plat "when so made and recorded, shall be deemed to be a sufficient conveyance to vest the fee in the county in which such town lies," this dispenses with any assent or acceptance on the part of the public, and in this respect differs from a common-law dedication. It differs, also, in the mode of operation, since by the language above quoted the estate vests in the public by conveyance or grant, whereas, at common law, a dedication to public uses, in cases where there is no express grant to a grantee upon consideration, operates by way of an estoppel in pais of the owner, rather than by grant or the transfer of an interest in the land. It should be remarked, however, that an incomplete or defective statutory dedication will, when accepted by the public, or when rights are acquired under it by third persons, operate in favor of the public and of such persons respectively, as a common-law dedication by the owner.3 29 Mo. 356; Chicago, B. & Q. R. R. Co. v. Banker, 44 Ill. 26; Gebhardt v. Reeves, 75 Ill. 301; United States v. Chicago, 7 How. 185; Gosselin v. Chicago, 103 Ill. 623 (effect of acknowledgment by an attorney in fact). Ante, sec. 185, note; post, sec. 640, note. Requirement that plat be recorded. Strong v. Darling, 9 Ohio, 201; Pangborn v. Westlake, 36 Iowa, 546 (1873); s. c. 7 West. Jurist, 420, and cases cited by Cole, J. "The 1 Fulton v. Mehrenfeld, 8 Ohio St. 440; Brown v. Manning, 6 Ohio, 298, 304 (1834); Baker v. St. Paul, 8 Minn. 491, 493, note remarks of Flandrau, J.; Ragan v. McCoy, 29 Mo. 356; Wisby v. Bonte, 19 Ohio St. 238. See People v. Jones, 6 Mich. 176; Jacksonville v. Jack sonville Ry. Co., 67 Ill. 540 (1873); Mytton v. Duck, 26 Up. Can. Q. B. 61; Harr. Munic. Man. (5th ed.) 481. difference between a statutory and a common-law dedication [under the statutes of Illinois] is, that the one vests the legal title to the ground set apart for public pur. poses in the municipal corporation, in trust for the public, while the other leaves the legal title in the original owner, charged, however, with the same rights and interests in the public which it would have if the fee was in the corporation." Per Sheldon, J., in Chicago, R. I. & Pac. R. R. Co. v. Joliet, 79 Ill. 25. See, also, Maywood Co. v. Maywood, 118 Ill. 61. As to effect of the legal title being in the one or the other, see chapter on Streets, post; infra, sec. 631, note. In Illinois, a statutory dedication vests the legal title to streets in the city in trust for public uses as streets, while a common-law dedication leaves it in the owner, but subject to the public uses of streets. Gosselin v. Chicago, 103 Ill. 623; Zinc Co. v. La Salle, 117 Ill. 411 (1886). 2 Per Swan, J., Fulton v. Mehrenfeld, 8 Ohio St. p. 444, supra; Cincinnati v. White, 6 Pet. (U. S.) 431; Pawlet v. Clark, Cranch, 292; Hunter v. Sandy Hill Trs., 6 Hill (N. Y.), 407; Curtis v. Keesler, 14 Barb. (N. Y.) 521; Brown v. Manning, 6 Ohio, 298, 303, and cases cited; Cincinnati's Lessees v. Hamilton Co. Comm'rs, &c., 7 Ohio, Pt. 1, 88; Ib. 217; Schurmeier v. St. Paul & Pac. R. R. Co., 10 Minn. 82, 104; Cook v. Harris, 61 N. Y. 448; Zinc. Co. v. La Salle (city of), 117 Ill. 411 (1886), where the effect of a statutory dedication is fully considered; Reid v. Board of Education, 73 Mo. 295; infra, sec. 640, and note. 38 Ohio St. 440, supra; Baker v. Johnston, 21 Mich. 319 (1870); infra, sec. 633, note; Hurley v. Boom Co., 34 Minn. 143. Equitable owner may dedicate, and trustee holding the mere naked legal title is bound to respect it. Williams v. First Presb. Church, 1 Ohio St. 478; Baker v. St Paul, 8 Minn. 491; Hannibal v. Draper, 15 Mo. 638; Ragan v. McCoy, § 629 (492). Extent of Dedication. Although the effect of a statutory dedication may be to grant the fee of the streets to the corporation in trust for the public uses, yet, unless prohibited by statute, the proprietor, in laying out a town or addition, may grant the easement simply, and reserve the minerals therein.1 But such 29 Mo. 356, 366 (1860); Johnstone v. Scott, 11 Mich. 232; Doe v. Attica, 7 Ind. 641 (1856); Dover Trs. v. Fox, 9 B. Mon. (Ky.) 200; Banks v. Ogden, 2 Wall. 57; Sargeant's Heirs v. Ind. State Bank, 4 McLean, 339; 12 How. 371. "The authorities show that dedications have been established in every conceivable way by which the intention of the party could be manifested." Per Breese, J., in Waugh v. Leech, 28 Ill. 488 (1862); Alvord v. Ashley, 17 Ill. 363; Dunion v. People, Ib. 416; Maywood Co. v. Maywood, 118 Ill. 61; Waltman v. Rund, 109 Ind. 366. Thus, the making and recording of a town plat is evidence of the highest character of the dedication of the streets and alleys marked upon it. Waugh v. Leech, supra; Godfrey v. Alton, 12 Ill. 29; Belleville v. Stookey, 23 Ill. 441. An unsigned and unacknowledged plat, recorded and acted on, held to be effectual as a common-law dedication (Field v. Carr, 59 Ill. 198 (1871), while in Indiana it is held that a plat not signed by the owner and not acknowledged as required by law is not entitled to record; and if it be recorded, the record is a nullity. Taylor v. Fort Wayne, 47 Ind. 274 (1874). Unconditional dedication on recorded town plat (recognized by the city charter) of land as a "public levee" or landing place, held effectual without any specific formal acceptance of such levee; and it was further held that user was not essential to maintain or continue the rights of the public, and it was considered doubtful whether the public rights could be lost by adverse occupation. Coffin v. Portland, 11 Saw. C. C. R. 600 (1896); s. c. 27 Fed. Rep. 412, Deady, J. Compare Portland & W. V. R. R. Co. v. Portland, 14 Oreg. 188. Infra, sec. 649, note; San Leandro v. Le Breton ("Court Square") 72 Cal. 170 (1887); s. c. 13 Pac. Rep. 405. Under the statutes of Kansas, the execution and recording of a plat of a city or town conveys to the county the fee of use, such parcels of land as are therein expressed, named, or intended for public in trust and for the uses therein named, expressed or intended, and for no other use or purpose, and a subsequent conveyance of land thus dedicated to public uses by the proprietor of the city, town, or addition, to the county does not destroy the trust created by the execution and recording of the plat. Franklin Co. Comm'rs v. Lathrop, 9 Kan. 453 (1872); infra, sec. 629, note. By the making and recording of a town plat, under the statutes of Indiana on that subject, the designation of streets, lanes, and alleys on the plat gives to the public only an easement therein for such use as the public have a right to make of them; but the fee simple remains in the proprietor. Cox v. Louisville, N. A. & C. R. R. Co., 48 Ind. 178 (1874). Construction of Missouri statute. Price v. Thompson (as to "park "), 48 Mo. 363; Ruther ford v. Taylor (rights of adjoining owners), 38 Mo. 315. 1 Dubuque v. Benson, 23 Iowa, 248 (1867). See Noyes v. Ward, 19 Conn. 250 (1848); Manly v. Gibson, 13 Ill. 312; Peck v. Prov. Steam Engine Co., 8 R. I. 353 (1866). Words on the plat "The streets are dedicated for street purposes, and those only," held to give the public only an easement, and that subterraneous mines were reserved. 23 Iowa, 248, supra. Under statute of Illinois. Zinc Co. v. La Salle (right of abutter to mine), 117 Ill. 411 (1886). Right of city to remove soil, gravel, &c. Post, sec. 687 et seq. Dedicator may limit duration (Antones v. Eslava's Heirs, 9 Port. (Ala.) 527), or make a qualified dedication, that is, prescribe or limit the nature and extent of the use to which the property may be subject, as for a "common," "public square," "landing place," "markets," &c. Niag ara Falls Susp. Br. Co. v. Bachman, 66 N. Y. 261 (1876). Infra, sec. 648; Tyler v. Sturdy ("foot-way "), 108 Mass. 196; proprietor cannot confer upon a county or extraneous corporation the control of streets in a city, and thus deprive the proper municipal corporation of the control given to it by law. A dedication may be made in præsenti, to be carried into effect in futuro.2 Trustees v. Hoboken, 33 N. J. L. 13; Hoboken Imp. Co. v. Hoboken, 36 N. J. L. 540; Hoboken v. Pa. R. R. Co., 124 U. S. 656, 681 (1887), distinguishing preceding case; De Witt v. Ithaca, 15 Hun, 568; Morant v. Chamberlin, 6 H. & N. 541. Infra, sec. 634. Dedication of ordinary highways gives the public an easement of passage only, all other rights remaining with the dedicator. The owner who dedicates to the public use as a highway a portion of his land parts with no other right than the right of passage to the public over the land so dedicated, and may exercise all other rights of ownership not inconsistent therewith. St. Mary's, Newington, v. Jacobs, L. R. 7 Q. B. C. 53. There may be a dedication to the public of a right of way, such as a footpath across a field, subject to the right of the owner of the soil to plough it up in due course of husbandry, and destroy all trace of it for the time. Mercer v. Woodgate, L. R. 5 Q. B. C. 26 ; Arnold v. Blaker, L. R. 6 Q. B. C. 433; Arnold v. Holbrook, L. R. 8 Q. B. C. 96. A deed executed by the owner of the land abutting on a lane in which the limits of the lane were given may be referred to for the purpose of ascertaining the width of the lane. The Queen v. Donaldson, 24 Up. Can. C. P. 148. An owner who clears open a passage through his land and neither marks by any visible distinction nor excludes persons from passing through his land by positive prohibition, shall be presumed to have dedicated it to the public. Rex v. Lloyd, 1 Camp. 260. But an obstruction, such as a gate-post or chains, may be looked upon as evincing a contrary intention. Roberts v. Karr, 1 Camp. 262 n; Lethbridge v. Winter, Ib. 263 n; Woodyer v. Hadden, 5 Taunt. 126; Rex v. St. Benedict Par., 4 B. & Ald. 447; Rex v. Leake, 5 B. & Ad. 469; Marquis of Stafford v. Coyney, 7 B. & C. 257; Barraclough v. Johnson, 8 A. & E. 99; Poole v. Huskinson, 11 M. & W. 827; Pryor v. Pryor, 26 L. T. N. s. 758; Where an Healey v. Corp. of Batley, L. R. 19 Eq. 375; Commonwealth v. Newbury, 2 Pick. (Mass.) 51; Proctor . Lewiston, 25 Ill. 153. But it is not conclusive. Johnston v. Boyle, 8 Up. Can. Q. B. 142; Davies v. Stephens, 7 C. & P. 570; Beveridge v. Creelman, 42 Up. Can. Q. B. 29. A highway may be dedicated to the public subject to a pre-existing right of user by the occupiers of adjoining land for the purpose of depositing goods thereon. Morant . Chamberlin, 6 H. & N. 541. erection or excavation exists upon land, and the land on which it exists or to which it is contiguous is dedicated to the public, it is dedicated subject to the inconvenience or risk arising from the existing state of things. Fisher v. Prowse, 2 Best & S. 770; Robbins v. Jones, 15 C. B. N. s. 221: Le Neve v. Mile End Old Town, 8 E. & B. 1054; Harr. Munic. Man. (5th ed.) 483, 484. As to extent of dedication, see infra, secs. 633, and note, 644 et seq. 1 Derby v. Alling, 40 Conn. 410 (1873). 2 Des Moines v. Hall, 24 Iowa, 234, 241 (1868). In this last case, construing the Iowa statute, it was held (Cole, J., dissenting) that the laying off and recording a town plat or an addition thereto, under the code, had the effect to vest in the corporation the fee simple title to, and exclusive right of dominion over the streets and alleys thus dedicated to the public use; and in such case the original proprietor has no right to the subterraneous deposits of coal within the limits of such streets, and the corporation may maintain an action against him for coal mined and taken by him from beneath the same. In Minnesota, it is held that under a statutory dedication the fee simple to land dedicated for streets, squares, &c., does not pass, but only such an estate or interest as the purposes of the trust require. Schurmeier v. St. Paul & Pac. R. R. Co., 10 Minn. 104; affirmed, 7 Wall. 272. The owner of a tract of land laid the same out into blocks and It may also, if there be no restrictive statute, be made upon condition.1 Common-Law Dedication; Rationale and Requisites. § 630 (493). Common-Law Dedications. As to common-law dedications, the right to make which is not usually taken away or abridged by statutory regulations respecting town-plats,2 the subject may be advantageously presented by referring to the leading case of the City of Cincinnati v. White,3 decided by the Supreme Court of the United States, which has been extensively followed by the State tribunals, and is everywhere recognized as a sound exposition of the peculiar doctrines of the law respecting the rights which may be parted with by the owner and acquired by the public under the doctrine of dedication. In that case it appeared that in 1789 the original proprietors of Cincinnati designated on the plan of the town the land between Front Street and the Ohio River as a common, for the use and benefit of the town forever. A few years afterwards a claim was set up to this common by a person who had procured a deed from the trustee in whom the fee of the land was vested, and who had entered upon the common and claimed the right of possession. The proof of the dedication (marking on the plat, accompanied by public use) being made out to the satisfaction of the court, it sustained the rights claimed by the city. At the time the plan was lots, dedicating a strip of ground in front of the lots to the public for a street, reserving a space between the lots and street dedicated for courtyards only. The city authorities cannot appropriate the portion dedicated as a street to the purpose of a roadway merely, and deprive the owners of lots on one side of the street of a sidewalk between the courtyards and the roadway proper. Carter v. Chicago, 57 Ill. 283. Under the Town Site Act of Kansas, the fee of streets, &c., dedicated to public use by an owner, vests in the county absolutely, subject to the control of the city as another agent of the public. Wood v. National Water Works Co., 33 Kan. 590. 1 St. Louis v. Meier, 77 Mo. 13. In this case one Kingsland, an owner of land in a city, filed a plat showing streets and alleys "dedicated to public use, provided the owners north and south of the subdivision will dedicate the same streets and alleys through their respective tracts without expense to the owners of the lots of the above subdivision." The adjacent owners having made no dedication as contemplated by Kingsland, the city proceeded to condemn their land for streets, treating Kingsland's dedication as complete, and not including the streets and alleys on his plat in the proceedings. It was held that the dedication was conditional, and should "take effect according to its terms or not at all;" but the city could acquire title to the streets and alleys appearing upon the plat by proceedings for condemnation. See, also, Port Huron v. Chadwick, 52 Mich. 320; infra, sec. 632, note. 2 Abbott v. Cottage City, 143 Mass. 521; Sanborn v. Minneapolis, 35 Minn. 314; Browne v. Bowdoinham, 71 Me. 144. Cincinnati v. White, 6 Pet. (U. S.) 431 (1832). See Noyes v. Ward, 19 Conn. 250; Manly v. Gibson, 13 III. 312; Perry v. New Orleans, M. & C. R. R. Co., 55 Ala. 413; citing and approving text. |