§ 734. Title to alluvium and accretions. The title to lands bordering on navigable waters when derived from the general government stops at the margin,132 the public. securing no title to lands under water. In a recent case in the supreme court of the United States 133 it was held that under the riparian laws of New Jersey, lands below high-water mark constituting the shores and submerged lands of the navigable waters of the state was the property of the state as sovereign and that its title and interest in such shore lands was a distinct and separate estate to be dealt with and disposed of in accordance with the terms of state statutes either by a sale to the riparian owner or to a stranger, who, succeeding to the state's title, has no relation to the land of the adjacent riparian owner except that of a common boundary. The court further held that under such a grant the land conveyed was held by the grantee on the same terms on which all other lands are held by private persons under absolute title and that every previous right of the state, whether proprietary or sovereign, was transferred or extinguished except such sovereign rights as the state could lawfully exercise over all other private property. That under such a grant the grantee had rightful and exclusive possession of the premises conveyed against highway or street to public use prior to the existence of a municipal corporation, then, upon such corporation coming into being, the use of the highway or street, in trust for the public, at once vests in it." McDonald v. Stark, 176 Ill. 456; City of Sullivan v. Tichenor, 179 Ill. 97; Evansville & T. H. R. Co. v. State, 149 Ind. 276, 49 N. E. 2; Conkling v. Village of Mackinaw City, 120 Mich. 67, 79 N. W. 6; Bates v. City of Beloit, 103 Wis. 90, 78 N. W. 1102. 132 City of Mobile v. Emanuel, 1 How. (U. S.) 99; Pollard's Lessee v. Files, 2 How. (U. S.) 591; Yates v. Milwaukee, 77 U. S. (10 Wall.) 497; Seabury v. Field, 1 McAllister, 1, Fed. Cas. No. 12,574; Friedman v. Goodwin, 1 McAllister, 142, Fed. Cas. No. 5,119; Walker v. Marks, 2 Sawyer, 152 Fed. Cas. No. 17,078. The history of the title of San Francisco to the tide lands or lands be tween high and low water mark in the bay of San Francisco reviewed. Harris v. McGovern, 2 Sawyer, 515, Fed. Cas. No. 6,125; Wood v. City of San Francisco, 4 Cal. 190; Ruge v. Apalachicola Oyster Canning & Fish Co., 25 Fla. 656, 6 So. 489; Allen v. Munn, 55 Ill. 486; Furman v. City of New York, 10 N. Y. 567; Dry Dock, E. B. & B. Co. v. New York & H. R. Co., 30 How. Pr. (N. Y.) 39. But see Holmes v. Cleveland, C. & C. R. Co., 93 Fed. 100. 133 City of Hoboken v. Pennsylvania R. Co., 124 U. S. 656; Florida Southern R. Co. v. Brown, 23 Fla. 104, 1 So. 512; Cincinnati & G. R. Co. v. Mims, 71 Ga. 240. an adverse claim to an easement or right of way upon and over them even against a municipality whose claim was based upon an original dedication of streets to high-water mark. Under ordinary circumstances where land dedicated to a public use is bounded by a stream, the rights and privileges of the publie as a riparian owner are the same as those of a private individual and it acquires the same title in alluvial accretions made by the changes in the shifting of the stream which constitutes the boundary of its possessions as in the property already held.134 $735. Acceptance of lands dedicated necessary. As already stated, in order to effect a dedication of lands to a public use, not only must the intent of the owner to dedicate property appear by acts or words showing it conclusively and clearly,135 but there must also be on the part of the public authorities an acceptance of the grant.136 This is held necessary not 134 Davenport & R. I. Bridge R. Terminal Co. v. Johnson, 188 Ill. 472, 59 N. E. 497. 135 See section 728, ante. 136 Arkansas River Packet Co. v. Sorrels, 50 Ark. 466; Stallard v. Cushing, 76 Cal. 472, 18 Pac. 427; Stone v. Brooks, 35 Cal. 489. Land dedicated to a public use as a street under the Street Act of 1862, p. 391, §§ 1 and 3, becomes such without the formal acceptance of the proper authorities. People v. Williams, 64 Cal. 498. Before acceptance, a proprietor of land may recall his offer of dedication. City of Anaheim v. Langenberger, 134 Cal. 608, 66 Pac. 855; Hayward v. Manzer, 70 Cal. 476; Taft v. Tarpey, 125 Cal. 376; City & County of San Francisco v. Sharp, 125 Cal. 534; Trine v. City of Pueblo, 21 Colo. 102, 39 Pac. 330; New York, N. H. & H. R. Co. v. City of New Haven, 46 Conn. 257; Curtiss v. Hoyt, 19 Conn. 154; City of Chicago v. Gosselin, 4 III. App. 570; O'Connell v. Bowman, 45 Ill. App. 654; Town of Dayton v. Town of Rutland, 84 Ill. 279; Lee v. Town of Mound Station, 118 Ill. 304; Hamilton v. Chicago, B. & Q. R. Co., 124 Ill. 235, 15 N. E. 854; Jordan v. City of Chenoa, 166 Ill. 530, 47 N. E. 191; Westfall v. Hunt, 8 Ind. 174. A lot is not to be considered public property merely because the owner on a plat pleases to name it "public square," the mere offer to dedicate does not create a right unless accepted. Lightcap v. Town of North Judson, 154 Ind. 43, 55 N. E. 952; City of Huntington v. Townsend, 29 Ind. App. 269, 63 N. E. 36; Spurrier v. Bland, 20 Ky. L. R. 1340, 49 S. W. 467; Johnson v. City of Burlington, 95 Iowa, 197, 63 N. W. 694; Incorporated Town of Cambridge v. Cook, 97 Iowa, 599, 66 N. W. 884; Burlington, C. R. & N. R. Co. v. City of Columbus Junction, 104 Iowa, 110, 73 N. W. 501. Iowa Code of 1873, § 527, in respect to the acceptance by special ordinance of streets dedicated to a public use does not apply to towns. Uptagraff v. Smith, 106 only on account of the legal nature of the transaction, but also because through the legal establishment of a highway, boulevard or pleasure ground, a duty is imposed upon a public corporation to improve and care for the property to the extent rendered necessary by the frequency of its use. The performance of this duty requires the expenditure of public funds and it may become, because of this, a burden upon the community and one which should not at least be created without its consent.137 The further duty is imposed on municipal corporations proper to maintain in a rea Iowa, 385, 76 N. W. 733; City of Osage City v. Larkin, 40 Kan. 206, 19 Pac. 658, 2 L. R. A. 56. The dedication to the public of the alleys of a city require no formal action by the city. Wilkins v. Barnes, 79 Ky. 323; David v. Municipality No. 2, 14 La. Ann. 872; Muzzey v. Davis, 54 Me. 361; Slater v. Gunn, 170 Mass. 509, 49 N. E. 1017, 41 L. R. A. 268; Moffatt v. Kenny, 174 Mass. 311, 54 N. E. 850. The acceptance of a street dedicated to a public use under Pub. St. c. 49, § 94, cannot be established by evidence of public use alone on the failure to lay out a street as required by statute. Attorney General v. Tarr, 148 Mass. 309, 19 N. E. 358, 2 L. R. A. 87; Nichols v. New England Furniture Co., 100 Mich. 230; Baker v. City of St. Paul, 8 Minn. 491 (Gil. 436). Where a plat is executed and recorded in conformity with the statute, no formal acceptance by the public is necessary. De Mers v. Daniels, 39 Minn. 158; Buschmann v. City of St. Louis, 121 Mo. 523; Warren v. Brown, 31 Met. 8, 47 N. W. 633; Close v. Swanson, 64 Neb. 389, 89 N. W. 1043; Beasley v. Town of Belvidere, 59 N. J. Law, 408, 35 Atl. 797; Booraem v. North Hudson County R. Co., 39 N. J. Eq. 465; Pennsylvania R. Co. v. Ayres, 50 N. J. Law, 660; Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261; Meier v. Portland C. R. Co., 16 Or. 500, 1 L. R. A. 856; Ex parte Pittsburgh Alley, 104 Pa 622; Remington v. Millerd, 1 R. I. 93; Gardiner v. Town Council of Johnston, 16 R. I. 94, 12 Atl. 888; Stone v. Langworthy, 20 R. I. 602, 40 Atl. 832; Chafee v. City of Aiken, 57 S. C. 507, 37 S. E. 800. No formal acceptance of a street dedicated to a public use is necessary. Mathis v. Parham, 1 Tenn. Ch. 533; French v. Scheuber, 6 Tex. Civ. App. 617, 26 S. W. 133; City of Galveston v. Williams, 69 Tex. 449, 6 S. W. 860; Jefferson County v. Plummer (Tex. Civ. App.) 53 S. W. 711; Gilder v. City of Brenham, 67 Tex. 345, 3 S. W. 309; Frederick County Com'rs v. City of Winchester, 84 Va. 467. 137 Pennsylvania Co. v. Plotz, 125 Ind. 26; Burlington, C. R. & N. R. Co. v. City of Columbus Junction, 104 Iowa, 110, 73 N. W. 501; Incor porated Town of Cambridge v. Cook, 97 Iowa, 599; Bryant v. Inhabitants of Biddeford, 39 Me. 193; City of Detroit v. Detroit & M. R. Co., 23 Mich. 173; Alton v. Meenwenberg. 108 Mich. 629, 66 N. W. 571; Moore v. City of Cape Girardeau, 103 Mo. 470, 15 S. W. 755; Downend v. Kansas City, 71 Mo. App. 529; Beasley v. Town of Belvidere, 59 N. J. Law, 408; Rozell v. Andrews, 103 N. Y. 150. sonably safe condition the highways and public places within its limits, for public use or travel by those rightfully and lawfully using these places for a proper and public purpose.138 A failure to perform this duty will result in a liability to those who may be injured by reason of such a failure and this consideration is also a reason for the maintenance of the principle that an acceptance of lands dedicated is necessary in order that the corporation may be able to protect itself against this liability 130 by controlling and limiting the extent of its public ways. § 736. How shown. An acceptance of property dedicated to a public use may be either express or implied. Express, when by some instrument in writing executed by the proper authorities an acknowledgment of the dedication and the acceptance of it on behalf of the public for the public uses named in the dedication is made.140 An implied acceptance is shown either by public user for that length of time from which will be presumed a proper acceptance 141 or through 138 Beach V. Frankenberger, 4 W. Va. 712. See post, sections on municipal liability for torts. 139 City of Rock Island v. Starkey, 189 Ill. 515, 59 N. E. 971; Manderschid v. City of Dubuque, 29 Iowa, 73; City of Louisville v. Snow's Adm'r, 21 Ky. L. R. 1268, 54 S. W. 860; Kennedy v. City of Cumberland, 65 Md. 514, 9 Atl. 234. A resolution to repair a street sometime after an accident caused by its defective condition creates no liability where, prior to the accident, it had never been accepted as a public street. Guild v. Shed, 150 Mass. 255, 22 N. E. 896, construing Pub. St. Mass. c. 49, § 94, as a re-enactment of statutes of 1846, c. 203, § 1. 140 City of Little Rock v. Wright, 58 Ark. 142, 23 S. W. 876; Parsons v. Atlanta University, 44 Ga. 529; City of Keokuk v. Cosgrove, 116 Iowa, 189, 89 N. W. 983. The acceptance of a street or alley as provided by Iowa Code of 1873, § 527, Abb. Corp. Vol. II-51 is not exclusive. Central R. of N. J. v. City of Elizabeth, 35 N. J. Law, 359; Wisby v. Bonte, 19 Ohio St. 238; Albert v. Gulf, C. & S. F. R. Co., 2 Tex. Civ. App. 664, 21 S. W. 779. An instruction to the jury on the question of acceptance is erroneous which requires proof of affirmative action on the part of the city authorities. An acceptance may be either express or implied. Reilly v. City of Racine, 51 Wis. 526.. When the state by authority of law makes a city plat of its own land and dedicates to a public use the streets and other public grounds marked thereon, this act is in itself an acceptance. See, also, authorities cited under last note in this section. 141 London & San Francisco Bank v. City of Oakland (C. C. A.) 90 Fed. 691. Affirming 86 Fed. 30; Stewart v. Conley, 122 Ala. 179; Los Angeles Cemetery Ass'n v. City of Los Angeles (Cal.) 32 Pac. 240; the improvement and repair of the property dedicated by duly authorized authorities.142 The opening or grading of a street,143 Hall v. Kauffman, 106 Cal. 451, 39 Pac. 756; People v. Davidson, 79 Cal. 166, 21 Pac. 538; City of Eureka v. Croghan, 81 Cal. 524, 22 Pac. 693; Id., 19 Pac. 485; Logan v. Rose, 88 Cal. 263, 26 Pac. 106; City of Sacramento v. Clunie, 120 Cal. 29; Green v. Canaan, 29 Conn. 157; Guthrie v. Town of New Haven, 31 Conn. 308. The law presumes an acceptance by the public where a highway is shown to be a common convenience and necessity and therefore beneficial. Town of Lake View v. Le Bahn, 120 Ill. 92, 9 N. E. 269; City of Waterloo v. Union Mill Co., 72 Iowa, 437, 34 N. W. 197; State v. Birmingham, 74 Iowa, 407, 38 N. W. 121; Abbott v. Inhabitants of Cottage City, 143 Mass. 521; Moffatt v. Kenny, 174 Mass. 311. City of Detroit v. Detroit & M. R. Co., 23 Mich. 173. User by the public so far as it relates to the question of acceptance of a dedication of public highways is but evidence tending to prove acceptance and does not of itself constitute an acceptance. Kennedy v. Le Van, 23 Minn. 513; Klenk v. Town of Walnut Lake, 51 Minn. 381, 53 N. W. '703; Holdane v. Trustees of Cold Spring, 23 Barb. (N. Y.) 103; Requa v. City of Rochester, 45 N. Y. 129; Com. v. Moorehead, 118 Pa. 344, 12 Atl. 424; City of Scranton v. Scranton Steel Co., 154 Pa. 171, 26 Atl. 1; Hill v. Hoffman (Tenn. Ch. App.) 58 S. W. 929; Bellar v. City of Beaumont (Tex. Civ. App.) 55 S. W. 410; Shanks v. Whitney, 66 Vt. 405, 29 Atl. 367; Jarvis v. Town of Grafton, 44 W. Va. 453; Buchanan v. Curtis, 25 Wis. 99. But see Com. v. Barker, 140 Pa. 189, 21 Atl. 243. 142 Steele v. Sullivan, 70 Ala. 589; Stewart v. Conley, 122 Ala. 179, 27 So. 303; Evans v. Blankenship, 4 Ariz. 307, 39 Pac. 812; City of Durango v. Davis, 13 Colo. App. 285, 57 Pac. 733; Forbes v. Balenseifer, 74 Ill. 183; City of Rock Island v. Starkey, 91 Ill. App. 592; Fairbury Union A. Board v. Holly, 169 Ill. 9, 48 N. E. 149; Town of Fowler v. Linquist, 138 Ind. 566, 37 N. E. 133; Evansville & T. H. R. Co. v. State, 149 Ind. 276, 49 N. E. 2; Marratt v. Deihl, 37 Iowa, 250; Devoe v. Smeltzer, 86 Iowa, 385, 53 N. W. 287; Drury v. Inhabitants of Worcester, 38 Mass. (21 Pick.) 44; Nichols v. New England Furniture Co., 100 Mich. 230, 59 N. W. 155; Bates v. City of Beloit, 103 Wis. 90, 78 N. W. 1102; Conkling v. Mackinaw City, 120 Mich. 67, 79 N. W. 6; Shartle v. City of Minneapolis, 17 Minn. 308 (Gil. 284); State v. Walters, 69 Mo. 463; Du Bois Cemetery Co. v. Griffin, 165 Pa. 81, 30 Atl. 840; Remington v. Millerd, 1 R. I. 93. The repairs must not only be made at the expense of the public authorities but must be ordered and made by those legally competent to bind the corporation. But see Exterkamp v. Covington Harbor Co., 20 Ky. L. R. 966, 47 S. W. 1086. 143 Hall v. Kauffman, 106 Cal. 451; Town of Fowler v. Linquist, 138 Ind. 566; Kaime v. Harty, 73 Mo. 316; Smith v. City of Buffalo, 90 Hun, 118, 35 N. Y. Supp. 635; Orrick v. City of Ft. Worth (Tex. Civ. App.) 32 S. W. 443; City of Dallas v. Gibbs, 27 Tex. Civ. App. 275, 65 S. W. 81. |