importance of this principle may not always be appreciated, but we are in a great degree dependent on it for our highways and streets, and the grounds appropriated as places of amusement or of public business which are found in all our towns, and especially in our populous cities.1

Statutory and Common Law Dedications.

§ 491. Dedications of land to public uses are divisible into two class: 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

1 Per McLean, J., in New Orleans v. United States, 10 Pet. 662, 712, 1836. 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, 6 Hill (N. Y.), 407, 411, 1844. See Dovaston v. Payne, 2 Smith Lead Cas. 90, 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, chapter on Eminent Domain, ante, and chapter on Streets, post. Wisby v. Boute, 19 Ohio St. 238; Fulton v. Mehrenfeld, 8 Ohio St, 440, 1858; questioning the grounds of prior decision of Morris v. Bowers, Wright, (Ohio), 750; Williams v. The Church, 1 Ohio St. 478; Winona v. Huff, 11 Minn. 119, 1866; Baker v. St. Paul, 8 Minn. 491, 1863; Schurmeier v. Railroad Company, 10 Minn. 82, 1865; affirmed in Supreme Court, 7 Wall. 272, 1868; State v. Hill, 10 Ind. 219, 1858; Hays v. State, 8 ib. 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. 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 acknowledgment, or the like, to hold the proprietor estopped to make the objection that he did not comply with the statute.

Authentication of town plats and maps, nature of evidence necessary, &c., effect of unrecorded map, &c., see Commonwealth v. Allburger, 1 Whart. (Pa.) 469; Biddle v. Shippen, 1 Dallas, 19; Franey v. Miller, 1 Jones (Pa.), 435; Commonwealth v. Wood, 10 Barr (Pa.), 93; Winona v. Huff, 11 Minn. 119; Ragan v. McCoy, 29 Mo. 356; Chicago, &c. Railroad Company v. Banker, 44 Ill.; United States v. Chicago, 7 How, 185.

under the statute is 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, as 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 a 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 as a common law dedication by the owner.3

Fulton . 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. Boute, 19 Ohio St. 238. See People v. Jones, 6 Mich. 176.

1 Ib. per Swan, J., 8 Ohio St. p. 444, supra; Cincinnati r. White, 6 Pet. (U. S.) 582; Town of Paulet v. Clark, 9 Cranch, 202; Hunter v. Trustees, 6 Hill (N. Y.), 407; Curtis ». Keesler, 14 Barb. 521; Brown v. Manning, 6 Ohio, 298, 303, and cases cited; Cincinnati v. Commissioners, &c. 7 Ohio, pt. 1, 88; Ib. 217; Schurmeier v. Railroad Company, 10 Minn. 82, 104.

8 Ohio St. 440, supra. Equitable owner may dedicate, and trustee holding the mere naked legal title is bound to respect it: Williams v. The Church, &c. 1 Ohio St. 478; Baker v. St. Paul, 8 Minn. 491; Hannibal v. Draper, 15 Mo. 638; Ragan v. McCoy, 29 Mo. 356, 366, 1860; Johnson v. Scott, 11 Mich. 232; Doe v. Attica, 7 Ind. 641, 1856; Dover v. Fox, 9 B. Mon. 200; Banks v. Ogden, 2 Wall. 57; Sargent v. 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 ". Ashley, 17 Ill. 363; Dunion v. People, ib. 416. 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: Ib.; Godfrey . Alton, 12 Ill. 29; Belleville v. Stokey, 23 Ill. 441.

Under the statutes of Kansas, the execution and recording of a plat of a city or town, conveys to the county the fee of such parcels of land as are therein expressed, named, or intended, for public use, in trust and for the uses therein named, expressed, or intended, and for no other use or purpose, and a subsequent eonveyance 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: County Commissioners v. Lathrop, Supreme Court of Kansas, 1872, not yet reported. Construction of Missouri statute: Price v. Thompson (as to "park"), 48 Mo. 363; Rutherford 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; Manley v. Gibson, 13 Ill. 312. Words on the plat, "The streets are dedicated for street purposes, and that only," held to give the public only an easement, and that subterraneous mines were reserved: 23 Iowa, 248, supra. Dedicator may limit duration: Antones v. Eslava, 9 Port. (Ala.) 527.

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: Ib. Under the statute of 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. Railroad Company, 10 Minn. 104; affirmed, 7 Wall. 272.

Cincinnati v. White, 6 Pet. (U. S.) 431, 1832. See Noyes v. Ward, 19 Conn. 250; Manley v. Gibson, 13 Ill. 312.

as a sound exposition of the anomalous doctrines of the law respecting the rights which may be parted with by the owner and acquired by the public in this peculiar manner. 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 dedication (marking on the plat accompanied by public use) being made out to the satisfaction of the court, they sustained the rights claimed by the city. At the time the plan was adopted by the proprietors, and this ground was marked on the plat as a common, they did not, in fact, possess the equitable (or legal) title to the space dedicated; but they shortly afterwards purchased the equitable title: and it was held (their assent to the dedication continuing) that under the purchase the prior dedication was good.'

§ 494. In its opinion in the case just mentioned, the Supreme Court assert or assent to the correctness of the following principles: 1. That it is not essential to a dedication that the legal title should pass from the owner. 2. Nor is it es⚫sential that there should be any grantee of the use or easement in esse to take the fee, such cases being exceptions to the general rule requiring a grantee. 3. Nor is a deed or writing

1 Per McLean, J., in New Orleans v. United States, 10 Pet. 713.

2 Lade v. Shepherd, 2 Stra. 1004; Beatty v. Kurts (dedication of lot on plan "for the Lutheran Church"), 2 Pet. (U. S.) 256; New Orleans v. United States, 10 Pet. 662; Dubuque v. Maloney, 9 Iowa, 450; Kelsey v. King, 33 How. Pr. 39.

"Town of Paulet v. Clark, 9 Cranch (U. S.), 292; New Orleans v. United States, 10 Pet. 661, 713, 1836, where McLean, J., says: "It is not essential that this right of use should be vested in a corporate body; it may exist in the public, and have no other limitation than the wants of the community at large." See, also, McConnell v. Lexington, 12 Wheat. 582; Doe v. Jones, 11 Ala. 63, 1847; Vick v. Vicksburg, 1 How. (Miss.) 379, 1837; Antones v. Eslava, 9 Port. (Ala.) 527; Winona v. Huff, 11 Minn. 119, 1866. Dedications to the public of streets, cómmons, &c., may, on the corporation being erected, pass to it by operation of law: Mayor of Savannah v. Steamboat Company, R.

necessary to constitute a valid dedication; it may be by parol.' 4. No specific length of possession is necessary to constitute a valid dedication; all that is required is the assent of the owner of the soil to the public use, and the actual enjoyment by the public of the use for such a length of time that the public accommodation and private rights would be materially affected by a denial or interruption of the enjoyment."

§ 495. Conformably to the foregoing principles, a proposal by a land owner to give, free of charge, and upon certain conditions to be performed by the city, so much of his land as may be required to open or widen a street or highway, will, if the proposition be accepted, and the conditions complied with, in a reasonable time, estop such owner from claiming damages for his land; a formal vote of acceptance is not necessary; and

M. Charlt. (Geo.) R. 342, 1830; Doe v. Jones, 11 Ala. 63; Klinkener v. School District, 1 Jones (Pa.), 444; Pella v. Scholte, 24 Iowa, 283, 293; Canal Trustees v. Havens, 11 Ill. 554; Waugh v. Leech, 28 Ill. 488. If no donee or trustee be named the dedication is valid, and the legislature, as well as chancery, may directly appoint trustees who may recover in ejectment: Bryant v. McCandless, 7 Ohio, pt. 2, 135.

1 Barclay v. Howell's Lessee, 6 Pet. (U. S.) 498; Keen v. Lynch, 1 Rob. (Va.) 186, 1842; Dummer v. Jersey City, 1 Spencer (N. J.), 86, 1843; Vick v. Vicksburg, 1 How. (Miss.) 379, 1837; State v. Catlin, 3 Vt. 530; McKee v. St. Louis, 17 Mo. 184, 1852; Hunter v. Sandy Hill, 6 Hill (N. Y.), 407; Post v. Pearsall, 22 Wend. 425, 454; Dover v. Fox, 9 B. Mon. 200; Macon v. Franklin, 12 Geo. 239. A party taking under a partition in which streets were " dedicated is estopped to deny dedication: Wisby v. Boute, 19 Ohio St. 238. Jarvis v. Dean, 3 Bing. 447; State v. Catlin, 3 Vt. 530; Barclay v. Howell's Lessee, 6 Pet. (U. S.) 498, 1832; Saulet v. New Orleans (Square), 10 La. An. 81, 1855, per Ogden, J.; Noyes v. Ward, 19 Conn. 250, 268, 1848; 2 Greenl. Ev. Sec. 662; Denning v. Roome, 6 Wend. 651; State v. Marble, 4 Ire. (Law) 318.

Lands, "after being set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the orignal owner from revoking such dedication:" Per Thompson, J. in Cincinnati v. White, 6 Pet. 431, 437, 1832. As to irrevocability of dedication, after other rights have attached, see Macon v. Franklin, 12 Geo. 239, 1852; Haynes v. Thomas, 7 Ind. 38; Indianapolis v. Cross, ib. 9, 12; Ragan v. McCoy, 29 Mo. 356; State v. Catlin, 3 Vt. 530; Weisbrod v. Railroad Company, 18 Wis. 35; Commonwealth v. Alburger, 1 Whart. (Pa.) 469; Lee v. Lake, 14 Mich. 12.

seasonably fulfilling the conditions of the offer is sufficient.1 But unless private rights have attached a common law dedication of land for a highway, street, or other public use, may, according to some authorities, be revoked by the owner at any time before there has been an acceptance by formal act of the proper authorities, or by user, as hereinafter explained, but not afterwards. And a municipal corporation which has accepted a dedication of property to public use may, before vested rights have been acquired under the dedication, with the consent of the dedicator, revoke the acceptance.3

Extent of Dedication as Respects Dower.

§ 496. Where land is dedicated by the proprietor "for the use of the public," this has been considered to show, in the absence of statute to the contrary, an intention to give a mere easement, and not the fee. In such case the owner of the land, whether dedicated for the use of a highway, or street, or square, or common, retains his exclusive right in the soil for every purpose of use or profit, not inconsistent with the public easement, and may maintain appropriate actions for any encroachment upon it."

1 Crockett v. Boston, 5 Cush. 182, 1849. Sixteen months considering the matter to be acted upon, and the usual course of proceeding, was not considered an unreasonable time: Ib.

"Holdane v. Cold Springs, 21 N. Y. 474, 1860; Baldwin v. Buffalo, 35 N. Y. 375; S. C. 29 Barb. 396. But see Jersey City v. Morris Canal Company, 1 Beasl. (N. J.) 547, 1849; Weisbrod v. Railroad Company, 18 Wis. 35; Lee v. Sandy Hill, 40 N. Y. 442, 1869. Completed dedication by map held not revocable, although not accepted: M. E. Church v. Hoboken, 33 N. J. (Law) 13, 1868; Cook v. Burlington, 30 Iowa, 94, 1870. So, in California, an acceptance by the public, by a formal act or by actual user, is not necessary to complete a dedication where the intent to dedicate is made out: Stone v. Brooks, 35 Cal. 489, 1868.

As to dedication and revocation of dedication of a strip of land which was a mere cul de sac, see Holdane v. Cold Spring, 21 N. Y. 474, 1860; S. C. 23 Barb. 103; Tillman v. People, 12 Mich. 401; People v. Jackson, 7 Mich. 432; Stone v. Brooks, 35 Cal. 489, 1868.

Municipality v. Levee Company, 7 La. An. 270, 1852.

Lade v. Shepard, 2 Stra. 1004; adhered to in the recent case of the Parish, &c. v. Jacobs, 25 Law T. Rep. (N. S.) 800. See, also, Goodtitle v. Alker, 1 Burr. 153; Harrison v. Parker, 6 East, 154; Jackson v. Hathaway, 15 Johns. 447; Perley v. Chandler, 6 Mass. 454; Pomeroy v. Mills, 3 Vt. 279,