Where one owning a limited interest in real property dedicates a larger one than he possesses at that time but subsequently the full and complete interest passes to him, the original grant of the larger interest then becomes complete as such.72 727. The nature and requisites of dedication; should be irrevocable. It is generally necessary to a dedication of property to a public use that it should be forever and irrevocable,73 for it would be unjust to allow a public corporation to accept and improve a grant of real property, acquire valuable rights in it as a trustee for the owner. Kansas City Milling Co. v. Riley, 133 Mo. 574, 34 S. W. 835; McBeth v. Trabue, 69 Mo. 642; St. Louis & S. F. R. Co. v. Gordon, 157 Mo. 71, 57 S. W. 742; Lewis v. City of Lincoln, 55 Neb. 1, 75 N. W. 154; McMannis v. Butler, 51 Barb. (N. Y.) 436; Matter of Rhinelander, 68 N. Y. 105; Todd v. Pittsburgh, Ft. W. & Co. R. Co., 19 Ohio St. 514; Lewis v. City of Portland, 25 Or. 133, 35 Pac. 256, 22 L. R. A. 736; Lownsdale v. Portland, Deady 1, Fed. Cas. No. 8,578; Scott v. State, 33 Tenn. (1 Sneed) 629; Roberts v. Turnpike Co., 98 Tenn. 133; Merton v. Dolphin, 28 Wis. 456. 72 Beebe's Heirs v. City of Little Rock, 68 Ark. 39, 56 S. W. 791; Kansas City Mill. Co. v. Riley, 133 Mo. 574, 34 S. W. 835; Longworth v. Sedevic, 165 Mo. 221, 65 S. W. 260. A dedication by one not the owner may be subsequently ratified by the true owner of the property. Reid v. Board of Education of Edina, 73 Mo. 295; Carter v. City of Portland, 4 Or. 339; Lewis v. City of Portland, 25 Or. 133, 22 L. R. A. 736; City of Deadwood v. Whittaker, 12 S. D. 515, 81 N. W. 908. 73 Ruch v. City of Rock Island, 5 Biss. 95, Fed. Cas. No. 12,105; London & San Francisco Bank v. City of Oakland (C. C. A.) 90 Fed. 691, affirming 86 Fed. 30. The dediIcation and acceptance to a public use are irrevokable and no rights can be acquired through adverse possession by the grantor or those obtaining under him in lands dedicated to a public use. This principle is not affected either by the length of possession or the characacter and value of the improvements made. Davenport v. Buffington (C. C. A.) 97 Fed. 234, 46 L. R. A. 377. The court in its opinion by Judge Sanborn in part say: "Besides, we are unwilling to concede that a nation or a state which becomes the proprietor of a town site, plats it, and dedicates its streets and parks to public use, has any greater or better right to revoke or avoid its grant or covenant than a private proprietor would have. It may be that either, before any rights have accrued, can revoke the dedication, but, after lots have been sold, after streets have been graded, after parks have been cared for and improved according to the plat, in other words, after rights have vested in reliance upon the dedication, we deny the right of nation or of individual to revoke public and have these interests constantly jeopardized through a possibility of an arbitrary revocation of the grant by the original donor or those claiming under him. The public thoroughfares of a community are generally secured through the operation of the principle of dedication and it is readily seen that the public incon it, or to release or destroy the right of the public to the exclusive use of the parks and streets for the purposes for which they were granted. Nations, states and municipalities have and exercise two classes of powers, one governmental, by which they rule their people; the other proprietary or business, by which they carry on their business affairs as legal personalities. The same fundamental principles of justice, of law, and of equity govern them in the exercise of their powers of the latter class which control the acts of private individuals. Illinois Trust & Sav. Bank v. Arkansas City, 76 Fed. 271, 282, 22 C. C. A. 171, 182, 34 L. R. A. 518, and 40 U. S. App. 257, 277, and cases there cited; United States v. Northern Pac. R. 'Co. (C. C. A.) 95 Fed. 864, 880. When the Cherokee Nation platted the town of Downingville, and when it undertook to revoke the dedication which that plat evidenced, it was not exercising its governmental, but its proprietary or business powers, and it was subject to the same principles of law and of equity, and to the same rules of estoppel, that would have governed a private proprietor under like circumstances. A nation, state, or municipality which dedicates land that it owns in the site of a town to public use for the purpose of a park is as conclusively estopped as a private proprietor from revoking that dedication, from selling the park, and from appropriating the land which it occupies to other purposes after lots have been sold, after the town has been settled, and after the park has been improved with moneys raised by the taxation of its residents and taxpayers in reliance upon the grant and covenant which the dedication evidences. Monongahela Nav. Co. v. United States, 148 U. S. 312, 341, 13 Sup. Ct. 622; Rutherford v. Taylor, 38 Mo. 315, 319; Warren v. Lyons City, 22 Iowa, 351; Ransom v. Boal, 29 Iowa, 69; Price v. Thompson, 48 Mo. 361, 365; Franklin County Com'rs V. Lathrop, 9 Kan. 453, 463; McCullough v. Board of Education, 51 Cal. 418; Harris County v. Taylor, 58 Tex. 690, 695. As the Cherokee Nation had no right to take possession of or to occupy the parks in the town of Downingville for the construction of residences in the year 1896, the appellant, Davenport, acquired no such right by his purchase from that nation, and the injunction was rightfully granted." The court also held that a resident and a taxpayer of a city could maintain a suit in equity to prevent the diversion to private use by the original proprietor of the town site of land which, when the town was laid out and platted, was dedicated as a public park and has since been maintained as such. Harper v. State, 113 Ala. 91, 21 So. 354; Stewart v. Conley, 122 Ala. 179; City of San Francisco V. venience and loss would be great if a rule other than that given should obtain. The underlying principle supporting the doctrine of estoppel is applicable to the question considered from the standpoint of the donor. It is based on the idea that a man shall not defeat his own act or deny its validity to the prejudice of another."* Canavan, 42 Cal. 541; Wheeler v. Benjamin, 136 Cal. 51, 68 Pac. 313. Chapin v. State, 24 Conn. 236; Town of Derby v. Alling, 40 Conn. 410; City of Chicago v. Sawyer, 166 II. 290, 46 N. E. 759; City of Indianapolis v. Kingsbury, 101 Ind. 200; Getchell v. Benedict, 57 Iowa, 121; Osage City v. Larkins, 40 Kan. 206, 19 Pac. 658, 2 L. R. A. Beall v. Clore, 69 Ky. (6 56; Bush) 676; Abrey v. Park & Boulevard Com'rs, 95 Mich. 181, 54 N. W. 714; Michigan Cent. R. Co. v. Bay City, 129 Mich. 264, 88 N. W. 638; Sanborn v. City of Minneapolis, 35 Minn. 314. A judgment for taxes against land to which is at tached a public easement cannot affect the easement. Cummings v. City of St. Louis, 90 Mo. 259, 2 S. W. 130; McGinnis v. City of St. Louis, 157 Mo. 191, 57 S. W. 755; Methodist Episcopal Church v. Hoboken, 33 N. J. Law, 13; Borough of Brigantine v. Holland Trust Co. (N. J. Eq.) 35 Atl. 344; City of Atlantic v. Groff, 64 N. J. Law, 527, 45 Atl. 916; New York & L. B. R. Co. v. Borough of South Amboy, 57 N. J. Law, 252, 30 Atl. 628. Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.) 407. A dedication of land for use as a burying ground is valid and the owner cannot revoke it after acceptance. In re Hunter, 163 N. Y. 542, 57 N. E. 735. Rehearing denied 164 N. Y. 365, 58 N. E. 288. Meier v. Portland Cable R. Co., 16 Or. 500, 19 Pac. 610, 1 L. R. A. 856; Penny Pot Landing v. City of Philadelphia, 16 Pa. 79; Peck & Salsbury v. Providence Steam Engine Co., 8 R. I. 353; Chapin v. Brown, 15 R. I. 579, 10 Atl. 639; Buntin v. City of Danville, 93 Va. 200, 24 S. E. 830; Schettler v. Lynch, 23 Utah, 305, 64 Pac. 955; City of Seattle v. Hill, 23 Wash. 92, 62 Pac. 446. 74 Glenwood Cemetery v. Close. 11 D. C. (4 McArthur) 96; Lansburgh v. District of Columbia, 8 App. (D. C.) 10; Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Tutwiler v. Kendall, 113 Ala. 664, 21 So. 332. Where no rights have been acquired the owner will not be estopped from denying a dedication. Stewart v. Conley, 122 Ala. 179, 27 So. 303; Sussman v. County of San Luis Obispo, 126 Cal. 536, 59 Pac. 24; Guthrie v. Town of New Haven, 31 Conn. 308; Brunswick & W. R. R. Co. v. City of Waycross, 91 Ga. 573; Rusk v. Berlin, 173 Ill. 634, 50 N. E. 1071; Pittsburgh, C., C. & St. L. R. Co. v. Noftsker, 26 Ind. App. 614, 60 N. E. 372; City of Indianapolis v. Board of Church Extension of U. P. Church, 28 Ind. App. 319, 62 N. E. 715. Where a portion of a street has been abandoned, a municipality will afterwards be estopped from claiming it as a part of the public highway. Minneapolis & St. L. R. Co. v. Town of Britt, 105 Iowa, 198, 74 N. W. 933; Gray v. Haas, 98 Iowa, 502; Giffen v. City of Olathe, 44 Kan. 342, 24 The law precludes the original owner or those claiming under him from revoking their gift, for this would be not only unjust to the public but a violation of good faith and especially to those who have acquired private property with a view to its enjoyment through the use of the highways thus publicly granted." The law will not permit a man to say that what he has said and done as a willing act and by which others have acquired rights was not according to the truth nor to act in a manner which will destroy the effect of that which he has previously and legally done. § 728. Intent necessary to a dedication. The act of dedication whether statutory or common law results in the transfer of property or property interests to the public for a public use and without direct compensation. It is true that indirectly the donor usually receives far more than the actual value of the property given because through his gift his remaining property is made more valuable for use and for sale to others." Pac. 470; State v. Wilson, 42 Me. 9; Hinckley v. Hastings 19 Mass. (2 Pick.) 162; Hobbs v. Inhabitants of Lowell, 36 Mass. (19 Pick.) 405; Price v. Town of Breckenridge, 92 Mo. 378, 5 S. W. 20; City of Omaha v. Hawver, 49 Neb. 1; State v. Atherton, 16 N. H. 203; Whittaker v. Ferguson, 16 Utah, 240, 51 Pac. 980. Where the owner of land acquiesces in its continual use for such a length of time that the public convenience will be materially affected by an interruption of the enjoyment of the easement, an intention to dedicate will be presumed. Ralston v. Town of Weston, 46 W. Va. 544, 33 S. E. 326. 75 Rusk v. Berlin, 173 Ill. 634, 50 N. E. 1071; State v. Waterman, 79 Iowa, 360, 44 N. W. 677; Franklin County Com'rs v. Lathrop, 9 Kan. 453; Hiss v. Baltimore & H. P. R. Co., 52 Md. 242; City of Port Huron v. Chadwick, 52 Mich. 320; Riedinger v. Marquette & W. R. Co., 62 Mich. 46, 28 N. W. 785; State v. Boscawen, 32 N. H. 331. A town may be estopped from denying the legal existence of a highway. Trustees of Watertown v. Cowen, 4 Paige (N. Y.) 510; Conrad v. West End Hotel & Land Co., 126 N. C. 776. The owner is concluded in his dedication of land where private parties have acquired rights in land thus dedicated by the purchase of abutting property even though no formal acceptance of the dedication by the public authorities has been made. Seegar v. Harrison, 25 Ohio St. 14; Neff v. Bates, 25 Ohio St. 169; Whittaker v. City of Deadwood, 12 S. D. 523, 81 N. W. 910; Smith v. Allen (Tex. Civ. App.) 40 S. W. 204; City of Richmond v. Stokes, 31 Grat. (Va.) 713. 76 Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145. "The setting apart of a public park upon such map is for the convenience and enjoyment of the inhab Since dedication in this respect is primarily a donation to the public and because also technically as a matter of law the act involves a contract either express or implied, it is necessary that there should be established from words or acts clearly and beyond a reasonable doubt the fact that it was the owner's intention to dedicate the property" and this question is usually one for the jury.78 County, 5 Dill. 549, Fed. Cas. No. 1,142; Demartini v. City & County of San Francisco, 107 Cal. 502, 40 Pac. 496; People v. Blake, 60 Cal. 497; City of Anaheim v. Langenberger, 134 Cal. 608, 66 Pac. 855; Quinn v. Anderson, 70 Cal. 454, 11 Pac. 746; Ward v. Farwell, 6 Colo. 66. A question of intent is one for a jury to determine. Starr v. 78 Alvord v. Ashley, 17 Ill. 363; Waugh v. Leech, 28 Ill. 488; Rees v. City of Chicago, 38 Ill. 322; Maltman v. Chicago, M. & St. P. R. Co., 41 Ill. App. 229; State v. McClure, 53 Kan. 295, 36 Pac. 353; Greenup Co. v. Maysville & B. S. R. Co., 14 Ky. L. R. 699, 21 S. W. 351; Lawrence v. Inhabitants of Mt. Vernon, 35 Me. 100; Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N. W. 270; Skjeggerud v. Minneapolis & St. L. R. Co., 38 Minn. 56, 35 N. W. 572; Nixon v. Town of Biloxi (Miss.) 5 So. 621; Wood v. People. 17 Colo. 458; Williams V. New York & N. H. R. Co., 39 Conn. 509; Porter v. Carpenter, 39 Fla. 14; City of Macon v. Franklin, 12 Ga. 239; Swift v. City of Lithonia, 101 Ga. 706, 29 S. E. 12. The acts relied upon must be such as to clearly show a purpose to surrender control over the property in question and devote the same to a definite public use. Town of Havana v. Biggs, 58 Ill. 483. The dedication may be made sometime after the public have been using the property dedicated. Hemingway v. City of Chicago, 60 Ill. 324; Harding v. Town of Hale, 61 Ill. 192. The question of intent is one for a jury to determine. Town of Princeton v. Templeton, 71 Ill. 68; McIntyre v. Storey, 80 Ill. 127; City of Chicago v. Johnson, 98 Ill. 618; Shelhouse v. State, 110 Ind. 509, 11 N. E. 484. The intent to dedicate by the owner Hurd, 34 N. J. Law, 87. The dedication of land to a public use is a question of intent and must be disproved or defeated by the acts and declarations of the owner and the circumstances under which the user has been permitted. The question of intent is one for a jury to determine under direction of the court. DeLong v. Spring Lake & Sea Girt Co., 65 N. J. Law, 1, 47 Atl. 491; Flack v. Village of Green Island, 122 N. Y. 107, 25 N. E. 267. |