"The doctrine of all the authorities is, that the intention to dedicate land to the public use is of the very essence of the act; but this intention may be proved as a fact, or inferred from circumstances.'' 79 "An intent on the part of the owner to dedicate is absolutely essential, and unless such intention can be found in the facts and circumstances of the particular case, no dedication exists.'' 80 This intent may be shown as declared by numerous authorities in several ways which will be noted in succeeding sections.81 A formal or original grant is conclusive evidence of an intent to dedicate,82 and although this may be legally insufficient it must be clearly and unequivocally shown; mere evidentiary facts tending to show do not of themselves constitute a dedication. Pittsburgh, C., C. & St. L. R. Co. v. Town of Crown Point, 150 Ind. 536, 50 N. E. 741. The presumption of dedication will not be defeated by the owner's participation in a matter not inconsistent with the public use of a highway constructed by him. Grant v. City of Davenport, 18 Iowa, 187; Morrison v. Marquardt, 24 Iowa, 35. The acts and circumstances relied upon to establish a dedication without a deed or other written evidence should be unequivocal, clear and convincing. Goodfellow v. Riggs, 88 Iowa, 540, 55 N. W. 319; Youngerman v. Board of Supervisors of Polk County Sup'rs, 110 Iowa, 731, 81 N. W. 166; Minneapolis & St. L. R. Co. v. Town of Britt, 105 Iowa, 198; Giles v. Ortman, 11 Kan. 59; Boerner v. McKillip, 52 Kan. 508; Allen v. Rinehardt, 90 Ky. 466; David's Heirs v. City of New Orleans, 16 La. Ann. 404; Pickett v. Brown, 18 La. Ann. 560; DeGril leau v. Frawley, 48 La. Ann. 184, 19 So. 151; State v. Wilson, 42 Me. 21; Hall v. City of Baltimore, 56 Md. 187; Broumel v. White, 87 Md. 521; Hayden v. Stone, 112 Mass. 346; Hurley v. City of West St. Paul, 83 Minn. 401, 86 N. W 427; Landis v. Hamilton, 77 Mo. 554. The acts relied on to establish dedication must be inconsistent and irreconcilable with any other construction. Kinnare v. Gregory, 55 Miss. 612; Eiseley v. Spooner, 23 Neb. 470; Close v. Swanson, 64 Neb. 389, 89 N. W. 1043; Doe d. Douglas v. Lock, 4 Nev. & M. 807; Craig V. Wells, 11 N. Y. 321; Commonwealth v. Beaver Borough, 171 Pa. 542, 33 Atl. 112; Lamar County v. Clements, 49 Tex. 347; Oak Cliff Sewerage Co. V. Marsalis (Tex. Civ. App.) 69 S. W. 176; State v. Travis County, 85 Tex. 435; Colbert v. Shephard, 89 Va. 401; Miller v. Town of Aracoma, 30 W. Va. 606, 5 S. E. 148; Pierpont v. Town of Harrisville, 9 W. Va. 215; Roberts v. Robertson, 53 Vt. 690, 38 Am. Rep. 710. 79 Smith v. State, 23 N. J. Law, (3 Zab.) 712. 80 Dillon, Mun. Corp. (4th Ed.) § 636. 81 See §§ 729 et seq., post. 82 Kittle v. Pfeiffer, 22 Cal. 484; People v. Eel River & E. R. Co., 98 Cal. 665, 33 Pac. 728; City of Macon v. Dasher, 90 Ga. 195; Litt 83 will still be regarded as evidence of such intention. The intent of the owner is also evidenced by the signing of a petition asking for the establishment of a highway to be used by the public.8* § 729. Intent as shown by the filing of a map or plat. The act of filing and recording a plat or map is sufficient to establish the intent on the part of the owner to make a donation to the public,85 and also operates as a conveyance to the public of the particular interest fixed either by statute or by custom and usage in that state; 86 an easement or fee simple as the case may be. A ler v. City of Lincoln, 106 Ill. 353; Waggeman V. Village of North Peoria, 160 Ill. 277, 43 N. E. 347; Browne v. Inhabitants of Bowdoinham, 71 Me. 144; McKenna v. City of Boston, 131 Mass. 143; White v. City of St. Louis, 153 Mo. 80, 54 S. W. 478; Pierce v. Chamberlain, 82 Mo. 618; City of Ashland v. Chicago & N. W. R. Co., 105 Wis. 398, 80 N. W. 1101. One who petitions the city to vacate a street is afterwards estopped to claim its abandonment or the condition of the fact of no dedication. 83 Morris v. School Dist. No. 86, 63 Ark. 149, 37 S. W. 569; Trickey v. Schlader, 52 Ill. 78. But see Fountain v. Keen, 116 Iowa, 406, 90 N. W. 82; McLaughlin v. Stevens, 18 Ohio, 94. 84 People v. Marin County, 103 Cal. 223, 37 Pac. 203, 26 L. R. A. 659; Norfolk & W. R. Co. v. Rasnake, 90 Va. 170, 17 S. E. 879. 85 Fitzgerald v. Saxton, 58 Ark. 494, 25 S. W. 499; Los Angeles Cemetery Ass'n v. City of Los Angeles (Cal.) 32 Pac. 240; City of Anaheim V. Langenberger, 134 Cal. 608, 66 Pac. 855; Bayard v. Hargrove, 45 Ga. 342; Earll v. City of Chicago, 136 Ill. 277; Boyer v. State, 16 Ind. 451; Town of Fowler v. Lindquist, 138 Ind. 566, 37 N. Abb. Corp. Vol. II - 49. E. 133; City of Evansville v. Evans, 37 Ind. 229; Shanklin v. City of Evansville, 55 Ind. 240; Yost v. Leonard, 34 Iowa, 9; City of Baton Rouge v. Bird, 21 La. Ann. 244; Calhoun v. Town of Colfax, 105 La. 416, 29 So. 887; Barney v. City of Baltimore, 1 Hughes, 118, Fed. Cas. No. 1,029; City of Duluth v. St. Paul & D. R. Co., 49 Minn. 201; Gamble v. City of St. Louis, 12 Mo. 617; City of Hannibal v. Draper, 15 Mo. 634; New Orleans J. & G. M. R. Co. v. Moye, 39 Miss. 374; Briel v. City of Natchez, 48 Miss. 423; Pierson v. City of Lebanon, 69 Mo.. App. 321; Gregory v. City of Lincoln, 13 Neb. 352; Pope v. Town of Union, 18 N. J. Eq. (3 C. E. Green) 282; In re 29th St., 1 Hill (N. Y.) 189; In re 39th St., 1 Hill (N. Y.) 191; May v. City of Brooklyn, 17 N. Y. Supp. 348; In re 32d St., 19 Wend. (N. Y.) 128; Bissell v. New York Cent. R. Co., 23 N. Y. 61; Rives v. Dudley, 56 N. C. (3 Jones Eq.) 126; City of Seattle v. Hill, 23 Wash. 92, 62 Pac. 446. But see City of Eureka v. McKay & Co., 123 Cal. 666, 56 Pac. 439. 86 Nelson v. City of Madison, 3 Biss. 244, Fed. Cas. No. 10,110; Illinois & M. Canal v. Haven, 11 Ill. 554; Woollacott v. City of Chicago, 187 Ill. 504, 58 N. E. 426. But see map or plat because of some defect or failure to comply strictly with the law and therefore regarded as ineffectual to accomplish a statutory dedication may still, through the subsequent acts of the owner, constitute a common-law dedication of the property indicated upon it as donated or granted to the public for their use either as a highway, street, alley, park or public ground.$7 § 730. Intent as evidenced by the sale of property with reference to a plat or survey. The mere filing of a map or plat not sufficient under the statutes or the making of a survey and the marking of land surveyed into square blocks, streets, alleys and parks may not of itself be considered such an act as will constitute a dedication to the public of a part of the property.88 But if the owner make sales of prop Davenport & R. I. Bridge Ry. & Terminal Co. v. Johnson, 188 Ill. 472, 59 N. E. 497. 87 Banks v. Ogden, 69 U. S. (2 Wall.) 57; Bayliss v. Pottawattamie County Sup'rs, 5 Dill. 549, Fed. Cas. No. 1,142; Town of Derby v. Alling, 40 Conn. 410; Earll v. City of Chicago, 136 Ill. 277, 26 N. E. 370; Field v. Carr, 59 Ill. 198; Smith v. Town of Flora, 64 Ill. 93; Zearing v. Raber, 74 Ill. 409; Hudson v. Miller, 97 Ill. App. 74; Maywood Co. v. Village of Maywood, 118 Ill. 61; Town of Lake View v. Le Bahn, 120 Ill. 92, 9 N. E. 269; Marsh v. Village of Fairbury, 163 Ill. 401, 45 N. E. 236; City of Chicago v. Sawyer, 166 Ill. 290, 46 N. E. 759; Rusk v. Berlin, 173 Ill. 634, 50 N. E. 1071; Village of North Chillicothe v. Burr, 185 Ill. 322, 57 N. E. 32; Strunk v. Pritchett, 27 Ind. App. 582, 61 N. E. 973; Shea v. City of Ottumwa, 67 Iowa, 39; Agne v. Seitsinger, 104 Iowa, 482, 73 N. W. 1048. It is for the jury to determine the facts of the case whether there is a grant of the right of way and its acceptance by the public authorities. Wyandotte County Com'rs V. First Presbyterian Church, 30 Kan. 620. The dedication of lots "to church purposes" and marking them on the plat as "church lots" is a sufficient dedication even if not in strict conformity with the statute and independent of the question of whether a dedication for church purposes is a dedication to public purposes. Cook v. Village of Hillsdale, 7 Mich. 115. If a plat is insufficient to effect a statutory dedication, the elements of a common-law dedication must exist in order that there be an appropriation to a public use. Conkling v. Village of Mackinaw City, 120 Mich. 67, 79 N. W. 6; Village of Wayzata v. Great Northern R. Co., 46 Minn. 505, 49 N. W. 205; Ragan v. McCoy, 29 Mo. 356; McGinnis v. City of St. Louis, 157 Mo. 191, 57 S. W. 755; Church v. City of Portland, 18 Or. 73, 22 Pac. 528, 6 L. R. A. 259; City of Harrisburg's Appeal (Pa.) 10 Atl. 787. 88 People V. Hibernia Sav. & Loan Soc. 84 Cal. 634, 24 Pac. 295; City of Logansport v. Dunn, 8 Ind. erty with reference to such survey or plat and representations in effecting the sales in regard to the location of streets, squares, parks or other public grounds, a dedication of these necessarily follows. The cases are many and establish this proposition be yond controversy.89 In respect to the application of the principle 378; Leland University v. City of New Orleans, 47 La. Ann. 100, 16 So. 653; Bailey v. Copeland, Wright (Ohio) 150; Leland v. City of Portland, 2 Or. 46; Lewis v. City of Portland, 25 Or. 133, 35 Pac. 256, 22 L. R. A. 736; Hamilton County v. Rape, 101 Tenn. 222, 47 S. W. 416; Wolf v. Brass, 72 Tex. 133, 12 S. W. 159; Diedrich v. Northwestern Union R. Co., 42 Wis. 248. 89 United States v. Illinois Cent. R. Co., 154 U. S. 225. Here in reference to the effect of platting by the government, where the essential statutory requirements were followed, it was said: "Again, the sale of the lots was, in law, an effectual dedication of the streets and public grounds for municipal uses, and, as observed by counsel, the purchasers of the lots acquired a special interest in the streets and public grounds on which their lots abutted, and the United States could make no disposition of them after the sale inconsistent with the use to which they had been dedicated. "The only parties interested in the public use for which the ground was dedicated are the owners of lots abutting on the ground dedicated, and the public in general. The owners of abutting lots may be presumed to have purchased in part consideration of the enhanced value of the property from the dedication, and it may be conceded they have a right to invoke, through the proper public author ities, the protection of the property in the use for which it was dedicated. The only party interested, outside of abutting owners, is the general public, and the enforcement of any rights which such public may have is vested only in the parties clothed with the execution of such trust, who are in this case the corporate authorities of the city, as a subordinate agency of the state, and not the United States." Rainey v. Herbert, 55 Fed. 443, affirming 54 Fed. 248; Cowley v. City of Spokane, 99 Fed. 840; Reed v. City of Birmingham, 92 Ala. 339, 9 So. 161; Sherer v. City of Jasper, 93 Ala. 530, 9 So. 584; Western R. of Alabama v. Alabama G. T. R. Co., 96 Ala. 272, 11 So. 483, 17 L. R. A. 474; Webb v. City of Demopolis, 95 Ala. 116, 13 So. 289, 21 L. R. A. 62; Ham v. Common Council of Dadeville (Ala.) 14 So 9. The principle applies whether a town is incorporated or not at the time. Avondale Land Co. v. Town of Avondale, 111 Ala. 523; Prescott v. Edwards, 117 Cal. 298, 49 Pac. 178; Town of San Leandro v. Le Breton, 72 Cal. 170, 13 Pac. 405. Here it was said: "Upon these facts the court below found as conclusions of law:-'that the town proprietors in making the map and plat of the town, as stated, and in placing the same as a public record of the county in the office of the county recorder, it operated as a declaration on their part to dedicate to public parks and grounds, the recent case of Archer v. Salinas City, cited in the notes, is instructive. The court say: "The same principles which are applicable to the dedication of publie streets apply to the dedication of a public park or square. All dedications for public use are to be considered with reference to the purpose for which the dedication is made or the use to which the property dedicated may be applied, and that purpose may be ascertained by the designation which the owner has affixed to the the place named "Court Square" to the purposes of an open, public town square for the use of the inhabitants of the town and the public. That in immediately following up the making and filing of the said map and plat by sales and conveyances by them of lots and blocks in the town to bona fide purchasers, in accordance with such map and plat, such dedication became absolute and irrevocable.' These conclusions are assailed by the appellants as not warranted by the facts, and whether they are or not is the principal question presented in the cause. "It is settled law that where one owning land lays off a town or village thereon, and makes a map of the town site showing it to be divided into streets, alleys, blocks, and lots, and then sells lots with reference to such map, he thereby makes an irrevocable dedication of the space represented on the map as streets to the use of the public. There are many cases to this effect, but only a few need be cited. (Kittle v. Pfeiffer, 22 Cal. 489; Stone v. Brooks, 35 Cal. 501; Rowan's Ex'rs v. Town of Portland, 47 Ky. [8 B. Mon.] 232; Bartlett v. City of Bangor, 67 Me. 464; Briel v. City of Natchez, 48 Miss. 423; Wiggins v. McCleary, 49 N. Y. 346). And if there be public squares or plazas represented on the map, the same rule applies to them, and dedication thereof may be estabHished in the same manner. (City of Cincinnati v. White's Lessee, 6 Pet. [U. S.] 431; Village of Watertown v. Cowen, 4 Paige [N. Y.] 510; Huber v. Gazley, 18 Ohio, 18; City of Logansport v. Dunn, 8 Ind. 378: Carter v. City of Portland, 4 Or. 339; Ruch v. City of Rock Island, 5 Biss. 95, Fed. Cas. No. 12,105; Grogan v. Town of Hayward, 6 Sawy. 498, 4 Fed. 161). To make the dedication complete, no formal acceptance of it is necessary. In this case no such acceptance could have been had till the town was organized by the legislature in 1872; and until then the former owners held the title of the property dedicated in trust for the public. (Grogan v. Town of Hayward, supra; Jersey City v. Morris Canal & Banking Co., 12 N. J. Eq. [1 Beasley] 547; Carpenteria School Dist. v. Heath, 56 Cal. 478)." A City of Eureka v. Armstrong, 83 Cal. 623, 22 Pac. 928, 23 Pac. 1085; Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145. landowner subdivided and marked a space "Central Park" on the map, and offered and sold lots with reference to the plat. Held, a dedication to the public unalterable and that acceptance and use were not necessary. It was said, upon attempt by the owner's grantee to re |