$ 725. Common-law. 62 61 Dedication implies a conveyance and an acceptance; the transaction including a contract either express or implied. But no specific length of time of use by the public is necessary. A statutory dedication can be said to be based upon an express grant or contract as prescribed by statutory provisions. A common-law dedication operates by way of an estoppel in pais rather than by the affirmative and direct act of the parties as authorized by statute. But in order to constitute a common-law dedication, no par C. 150; Conrad v. West-End Hotel & Land Co., 126 N. C. 776, 36 S. E. 282; Huber v. Gazley, 18 Ohio, 18; Meier v. Portland C. R. Co., 16 Or. 500, 1 L. R. A. 856; Steel v. City of Portland, 23 Or. 176, 31 Pac. 479; Com. v. Connellville Borough, 201 Pa. 154, 50 Atl. 825; Com. v. Beaver Borough, 171 Pa. 542, 33 Atl. 112; City of Pittsburg v. Epping-Carpenter Co., 194 Pa. 318, 45 Atl. 129; Mason v. City of Sioux Falls, 2 S. D. 640; Williams v. Smith, 22 Wis. 594. Bates v. City of Beloit, 103 Wis. 90, 78 N. W. 1102. The designation of an unplatted space as "Mechanics' Green" and another as "Public Square" together with the use of these places by the public and their improvement by the public authorities will operate as a dedication. But see Grant v. City of Davenport, 18 Iowa, 179, where a tract of land designated as "preserved landing" was held not a dedication to a public use. City of Pella v. Scholte, 24 Iowa, 283, where it is held that the words "grand square" marked on a town plat does not necessarily imply a dedication of the block to the public. Extrinsic evidence is necessary to fix their meaning. Baker v. Vanderburg, 99 Mo. 378, 12 S. W. 462. See, also, authorities cited in § 718. 61 Hall v. Armstrong, 53 Conn. 554. A right of way granted temporarily to an individual for a particular purpose is extinguished by the lack of possibility for such use. Grube v. Nichols, 36 Ill. 92; City of Chicago v. Borden, 190 Ill. 430, 60 N. E. 915; City of Helena V. Albertose, 8 Mont. 499, 20 Pac. 817; Heckerman v. Hummel, 19 Pa. 64; Schettler v. Lynch, 23 Utah, 305, 64 Pac. 955. See, also, note 32 Am. & Eng. Corp. Cas. 49. 62 Ogle v. Philadelphia, W. & B. R. Co., 3 Houst. (Del.) 267; Hill v. City of Sedalia, 2 Mo. App. Rep'r, 1019. 63 United States v. Illinois Cent. R. Co., 2 Biss. 174, Fed. Cas. No. 15,437; Bayliss v. Pottawattamie County Sup'rs, 5 Dill. 549, Fed. Cas. No. 1,142; Hibberd V. Mellville (Cal.) 33 Pac. 201; McKinzie v. Gilmore (Cal.) 33 Pac. 262. Where the owner of property opened a road through his land, fenced it on both sides, permitted it to be used by the public and to be repaired and improved by the public authorities, this was held a sufficient dedication to the public. Silva v. Spangler (Cal.) 43 Pac. 617; Smith v. City of San Luis Obispo, 95 Cal. 463; People v. Eel River & E. R. Co., 98 Cal. 665, 33 Pac. 728; Starr v. People, 17 Colo. 458; Chi ticular form, ceremony or instrument is necessary. All that is required is the assent of the owner of the land and its use by the public for the purposes intended by the appropriation. To constitute cago, R. I. & P. R. Co. v. City of Joliet, 79 III. 25. The difference between a statutory and commonlaw dedication is that the one vests the legal title of the ground set apart for public purposes 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. Moffett V. South Park Com'rs, 138 Ill. 620, 28 N. E. 975; City of Dubuque v. Maloney, 9 Iowa, 450; Leonard's Heirs v. City of Baton Rouge, 39 La Ann. 275, 4 So. 241; Village of Mankato v. Willard, 13 Minn. 13 (Gil. 1); City of St. Louis v. Wetzel, 110 Mo. 260; Parisa v. City of Dallas, 83 Tex. 253; Witter v. Damitz, 81 Wis. 385. 3 Washburn, Real Prop. (4th Ed.) c. 2, § 6. "To effect such a dedication, there must be a donation by the owner or some unequivocal act united with an intent to divest himself, to some extent, of the ownership or power of control over the property, and to vest an independent and irrevocable interest in some other person or body. No one but the owner of land in fee can dedicate it, or the use of it, to the public. And it is, moreover, essential to a dedication that the owner should intend what he does as a dedication, and this must be found affirmatively by the jury to constitute it such. The law considers such a state of things in the nature of an estoppel in pias, which precludes the original owner from 64 revoking such dedication; for this would be a violation of good faith to the public, and to those who have acquired private property with a view to the enjoyment of the use thus publicly granted." Dillon, Mun. Corp. (4th Ed.) § 628. "It differs (common law), 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 pias of the owner, rather than by grant or the transfer of an interest in the land." 64 Banks v. Ogden, 69 U. S. (2 Wall.) 57; City of Cincinnati v. White's Lessee, 6 Pet. (U. S.) 431; Barclay v. Howell's Lessee, 6 Pet. (U. S.) 498; City of New Orleans v. United States, 10 Pet. (U. S.) 662; Morgan v. Chicago & A. R. Co., 96 U. S. 716; Robertson v. Town of Wellsville, 1 Bond. 81, Fed. Cas. No. 11,930. "To dedicate property to public use is simply to appropriate, or set it apart to such use. There must be not only an intention to dedicate, but an act manifesting such intention. Hence, an expression of an intention, without some act to effectuate it, does not make a valid dedication. The law, however, requires no particular form or solemnity to constitute a valid dedication. A writing signed and acknowledged is not necessary. A dedication may be by parol, and may be established by proof of the verbal declarations of a complete dedication, an acceptance is necessary by the public.s This rule obtains because, upon the establishment and acceptance of a public highway, certain obligations and duties with respect to its maintenance are created and become fixed upon the public authorities. It is just that a rule of law should control the creation 66 the owner, or may be presumed without proof of any act of dedication, from the acquiescence of the owner in the use and occupation of property by the public. But usually, such use and occupation must be adverse to the title of the owner to raise a presumption of dedication." Town of Westmount v. Warmington, 9 Quebec J. B. 101; Godfrey v. City of Alton, 12 Ill. 29; McIntyre v. Storey, 80 Ill. 127; Union Stock Yards & Transit Co. v. Karlik, 170 Ill. 403, 48 N. E. 1008; Woodburn v. Town of Sterling, 184 Ill. 208, 56 N. E. 378. Intention to dedicate may be proven by oral declarations of the landowner. Davenport v. Buffington, 1 Ind. T. 424; Doe d. Sargeant's Heirs v. State Bank of Indiana, 4 McLean, 339, Fed. Cas. No. 12,360; Williams v. Wiley, 16 Ind. 362; Baltimore & O. S. W. R. Co. v. City of Seymour, 154 Ind. 17. Wilson v. Sexton, 27 Iowa, 15. "To constitute a dedication of land for a highway, no particular formality is required. Any act of the owner of the soil clearly indicating an intention to dedicate is sufficient. The intention may be manifested by writing, sealed or unsealed, by parol, or by acts inconsistent with any inference except such intention. Proof of the animus dedicandi may be by circumstances and may rest in pais. use of the way by the public with the knowledge and assent of the owner of the soil, will be consid The ered evidence of dedication; and when such use extends through a long series of years, the animus dedicandi is presumed. When the owner of the soil so long acquiesces in the use of the way, having knowledge thereof, he is estopped to deny his prior dedication." Agne v. Seitsinger, 104 Iowa, 482; Hall v. McLeod, 59 Ky. (2 Metc.) 98; Singleton v. School Dist. No. 34, 10 Ky. L. R. 851, 10 S. W. 793; Rector v. Hartt, 8 Mo. 448; McKee v. City of St. Louis, 17 Mo. 184; Missouri Inst. for the Blind v. How, 27 Mo. 211; Rose v. City of St. Charles, 49 Mo. 509; New York & N. H. R. Co. v. Pixley, 19 Barb. (N. Y.) 428; Cook v. Harris, 61 N. Y. 448; Grinnell v. Kirkland, 68 N. Y. 629; Le Clercq v. Town of Gallipolis, 7 Ohio (1st pt.) 217; Oswald v. Grenet, 22 Tex. 94; State v. Trask, 6 Vt. 355; Buntin v. City of Danville, 93 Va. 200, 24 S. E. 830. 65 Hayward v. Manzer, 70 Cal. 476, 13 Pac. 141; Brakken v. Minneapolis & St. L. R. Co., 29 Minn. 41. An acceptance is shown by user by the public and by an actual exemption of care and control by the public authorities in improving or working upon the highway. Garnett v. City of Slater, 56 Mo. App. 207. See §§ 735 et seq., post. 66 Reed v. City of Birmingham, 92 Ala. 239; Town of Salida v. McKinna, 16 Colo. 523, 27 Pac. 810; Green v. Belitz, 34 Mich. 512; Warren v. Brown, 31 Neb. 8; New York & L. B. R. Co. v. Borough of South 67 of these duties and that private parties ought not to be permitted to arbitrarily, and of their own volition, throw burdens upon a public corporation which in the discretion of public authorities it is not feasible or advisable that they should assume. The extent of the interest granted is another distinguishing characteristic as between a statutory and a common-law dedication, but this subject will be considered in a later section. In the determination of whether the facts in a particular case create a common-law dedication, the character of the land used, whether wild and uninclosed or cultivated, will be considered. Where it is of the character last named, a highway opened and used with the assent of the owner will be presumed to have been dedicated by him to the use of the public. The conditions justify the presumption that he is aware of its use. This principle is not true where land used for a highway is wild and uninclosed.68 § 726. Who may dedicate. A dedication is the giving or the grant of an interest in property by the owner to the public for a public use, and the legality of the act is necessarily limited by the legal power or control of the donor over the property given away by him. The owner alone can dedicate his interest. A gift by one not the Amboy, 57 N. J. Law, 252, 30 A. 628. 07 See § 733. 68 Ely v. Parsons, 55 Conn. 83; 10 Atl. 499; Short v. Walton, 61 Ga. 28; State v. Kansas City, St. J. & C. B. R. Co., 45 Iowa, 139. See cases cited under § 731, note 97, post. 69 Johnson v. Common Council of Dadeville, 127 Ala. 244, 28 So. 700; Watkins v. Lynch, 71 Cal. 21, 11 Pac. 808; Logan v. Rose, 88 Cal. 263, 26 Pac. 106; City of Eureka v. Fay, 107 Cal. 166; Franklin v. City of Macon, 12 Ga. 259; Gentleman v. Soule, 32 Ill. 271. If a mortgagee assents to a dedication made by the mayor, he will be bound by it as also those claiming under him. See, also, as holding this same prop 69 osition, Smith v. Heath, 102 III. 130, and Bushnell v. Scott, 21 Wis. 451. Vaughan v. Mann, 59 Ill. 492; James v. Illinois Cent. R. Co., 195 Ill. 327, 63 N. E. 153; Town of Fowler v. Linquist, 138 Ind. 566; Porter v. Stone, 51 Iowa, 373; State v. O'Laughlin, 19 Kan. 504. The inability of the original owner to make a dedication will rebut a presumption. Smith v. Smith, 34 Kan. 293. One keeping government land cannot dedicate a way across it nor can one be acquired by prescription. City of Detroit v. Detroit & M. R. Co., 23 Mich. 173; Burton v. Martz, 38 Mich. 761; Plumb v. City of Grand Rapids, 81 Mich. 381, 45 N. W. 1024; McBeth v. Trabue, 69 Mo. 642; Warren v. owner is ineffectual 70 as well as the grant of a greater interest in real property than one possesses and such action can in no way impair the interests of those apparently diminished or given away. Brown, 31 Neb. 8, 47 N. W. 633; Pruden v. Lindsley, 29 N. J. Eq. 615. Trustees of lands may dedicate them to a public use consistent with the trust. Property held for school purposes cannot be devoted under this principle to highway uses. Earle v. City of New Brunswick, 38 N. J. Law, 47. Executors having general power to sell may legally dedicate property to a public use. Robertson V. Meyer, 59 N. J. Eq. 366, 45 Atl. 983; Orrick v. City of Ft. Worth (Tex. Civ. App.) 32 S. W. 443. The heir of one not joining in the dedication of a part of community property to a city for street purposes is estopped by his acceptance of the property and a conveyance of a portion of it by description referring to the street in dispute. Town of Gate City v. Richmond, 97 Va. 337, 33 S. E. 615; Lawe v. City of Kaukauna, 70 Wis. 306, 35 N. W. 561. 70 Nelson v. City of Madison, 3 Biss. 244, Fed. Cas. No. 10,110; Hoole v. Attorney General, 22 Ala. 190; California Nav. & Imp. Co. v. Union Transp. Co., 126 Cal. 433, 58 Pac. 936, 46 L. R. A. 825; Spurrier v. Bland, 20 Ky. L. R. 340, 49 S. W. 467; Cyr v. Madore, 73 Me. 53; Village of Buffalo v. Harling, 50 Minn. 551, 52 N. W. 931; City of St. Louis v. Laclede Gas-Light Co., 96 Mo. 197, 9 S. W. 581. 71 McKey v. Hyde Park Village, 134, U. S. 84, Id., 37 Fed. 389. The use by the public of a street belonging to one who, at the time of its establishment was an infant, for a period of ten years after the at tainment of his majority, is sufficient to effect a dedication of the land. This question is, however, for a jury to determine and it is error to instruct that plaintiff's knowledge of the use of the land as a street coupled with his nonaction is a conclusive presumption of dedication. City of Smith v. City of Portland, 30 Fed. 734; City of Eureka v. Croghan, 81 Cal. 524, 22 Pac. 693; Niles v. City of Los Angeles, 125 Cal. 572, 58 Pac. 190; State v. Merrit, 35 Conn. 314. Unauthorized acts in dedicating property may be subsequently ratified by the proprietors. Edwardsville v. Barnsback, 66 Ill. App. 381; City of Alton v. Fishback, 181 Ill. 396, 55 N. E. 150; City of Lawrenceburgh v. Wesler, 10 Ind. App. 153, 37 N. E. 956. In the absence of ownership in the alleged donor as against a person claiming possession of land for the statutory period, an old city plat upon which a street is located is not prima facie evidence of its dedication. . Chicago, Town of Edenville v. M. &. St. P. R. Co., 77 Iowa, 69, 41 N. W. 568; City of Kansas City V. Banks, 9 Kan. App. 885, 61 Pac. 333. An oral dedication by an agent without authority is not effectual. South Baltimore Harbor & Imp. Co. of Anne Arundel County v. Smith, 85 Md. 537, 37 Atl. 27; Gregory v. City of Ann Arbor, 127 Mich. 454, 86 N. W. 1013; Bauman v. Boeckeler, 119 Mo. 189, 24 S. W. 207. The action of tenants in respect to an alleged dedication is not binding upon the |