the construction of sewers or sidewalks 144 or the expenditure of public moneys duly voted for this purpose by the public authorities will constitute an acceptance.145 An implied acceptance of the offer to dedicate will also be shown by refraining from the levy of taxes upon the land in question 146 and affirmative claims of its character as public property by public authorities,147 such as the bringing of an action of ejectment or suit to quiet title.148 Resolutions or ordinances passed by public legislative bodies referring to lands dedicated and recognizing them as public property will be considered evidence of an acceptance.1 144 In re Hunter, 163 N. Y. 542, 57 N. E. 735. Rehearing denied 164 N. Y. 365, 58 N. E. 288; City of Philadelphia v. Thomas' Heirs, 152 Pa. 494, 25 Atl. 873. But see City of San Antonio v. Sullivan, 4 Tex. Civ. App. 451, 23 S. W. 307. 145 Waring v. City of Little Rock, 62 Ark. 408; State v. Eisele, 37 Minn. 256, 33 N. W. 785; Rosenberger v. Miller, 61 Mo. App. 422; Stapleton v. City of Newburgh, 9 App. Div. 39, 41 N. Y. Supp. 96. 146 City of Sacramento v. Clunie, 120 Cal. 29, 52 Pac. 44. The converse of the principle is also true and the fact that taxes were levied upon land is evidence of an absence of both dedication and acceptance. Town of Lake View v. Le Bahn, 120 Ill. 92, 9 N. E. 269; City of Chicago v. Borden, 190 Ill. 430, 60 N. E. 915. The failure of public officials and assessors to levy taxes upon a private alley will not change its character into a public way and the owner cannot be deprived of his title in this manner. W. N. Eisendrath & Co. v. City of Chicago, 192 Ill. 320, 61 N. E. 419; City of Keokuk v. Cosgrove, 116 Iowa, 189, 89 N. W. 983. 147 Steele v. Sullivan, 70 Ala. 589; Palmer v. City of Clinton, 52 Ill. App. 67; Cochran v. Town of Shepherdsville, 19 Ky. L. R. 250, 43 S. 149 W. 250. An implied acceptance of dedication cannot be inferred from a mere extension of town limits. City of Louisville v. Snow's Adm'r, 21 Ky. L. R. 1268, 54 S. W. 860; People v. Underhill, 144 N. Y. 316, 39 N. E. 333, reversing 69 Hun, 86, 23 N. Y. Supp. 388. An acceptance of a dedication is not shown by the fact that along a portion of the street water pipes and sidewalks were laid. 148 City of Anaheim v. Langenberger, 134 Cal. 121, 66 Pac. 855. An action to establish title to land dedicated nearly twenty years before will not constitute an acceptance. Cass County Sup'rs v. Banks, 44 Mich. 467. The bringing of an action of ejectment for land offered by the owners nearly fifty years before and never accepted by the public authorities will not be considered an acceptance of the offer. City of Atlantic City v. Groff, 64 N. J. Law, 527, 45 Atl. 916, citing New Jersey cases. Inhabitants of Hohokus Tp. v. Erie R. Co., 65 N. J. Law, 353, 47 Atl. 566; Atlantic City v. Snee, 68 N. J. Law, 39, 52 Atl. 372. 149 City & County of San Francisco v. Sharp, 125 Cal. 534, 58 Pac. 173; Hoadley v. City & County of San Francisco, 70 Cal. 320, 12 Pac. 125; City of Eureka v. Armstrong, $737. Time of acceptance. It is not necessary to constitute a valid acceptance that it be made immediately following the act of the owner indicating his intent to dedicate.150 If the grant is accepted at any time before the dedication is withdrawn, this is usually held sufficient,151 al 83 Cal. 623, 23 Pac. 1085, affirming 83 Cal. 623, 22 Pac. 928; City of Rock Island v. Starkey, 91 Ill. App. 592; Shirk v. City of Chicago, 195 Ill. 298, 63 N. E. 193; Laughlin v. City of Washington, 63 Iowa, 652. Under Iowa Code 1873, § 527, which provides that before a dedicated street or alley shall be deemed public, the city council must accept and confirm the dedication by special ordinance. A mere adoption of the report of a committee recommending an acceptance and confirmation is not sufficient. Scheafer v. Selvage, 19 Ky. L. R. 797, 41 S. W. 569; Michigan Cent. R. Co. v. City of Bay City, 129 Mich. 264, 88 N. W. 638. A resolution authorizing the construction of a railroad over land dedicated as a street constitutes an acceptance by the public authorities of an offer to dedicate. Baker v. Vanderburg, 99 Mo. 378; State v. City of Bayonne, 53 N. J. Law, 299, 20 Atl. 69; City of Buffalo v. Delaware, L. & W. R. Co., 39 N. Y. Supp. 4; City of Dallas v. Gibbs, 27 Tex. Civ. App. 275, 65 S. W. 81. But see People v. Reed, 81 Cal. 70, 22 Pac. 474. An ordinance is insufficient as an acceptance which, without referring to the owner of land or the alleged dedication declares that certain land "be and the same is hereby dedicated and set apart to public use as a street." City of Chicago v. Drexel, 141 Ill. 89, 30 N. E. 774; Barker v. Wyandotte County Com'rs, 45 Kan. 681; Thompson v. Ocean City R. Co. (N. J. Eq.) 37 Atl. 129; City of Baltimore v. Broumel, 86 Md. 153, 37 Atl. 648; Valentine v. City of Hagerstown, 86 Md. 486, 38 Atl. 831; Depriest v. Jones (Va.) 21 S. E. 478; Jarvis v. Town of Grafton, 44 W. Va. 453, 30 S. E. 178. 150 London & San Francisco Bank v. City of Oakland, 33 C. C. A. 237, 90 Fed. 691; Sarver v. Chicago, B. & Q. R. Co., 104 Iowa, 59; Burlington, C. R. N. R. Co. v. City of Columbus Junction, 104 Iowa, 110; Uptagraff v. Smith, 106 Iowa, 385; City of Baltimore v. Frick, 82 Md. 77, 33 Atl. 435; Valentine v. City of Hagerstown, 86 Md. 486; Slater v. Gunn, 170 Mass. 509, 41 L. R. A. 268; Methodist Episcopal Church v. City of Hoboken, 33 N. J. Law, 13; City of Niagara Falls v. New York Cent. & H. R. R. Co., 41 App. Div. 93, 58 N. Y. Supp. 619; Williams v. City of Galveston (Tex. Civ. App.) 58 S. W. 551. 151 John Mouat Lumber Co. V. City of Denver, 21 Colo. 1, 40 Pac. 237; White v. Smith, 37 Mich. 291; Sanford v. City of Meridian, 52 Miss. 383. A revocation of an offer to dedicate will be presumed where, before an acceptance, a plat establishing streets at a certain width is withdrawn and another plat substituted upon which the streets are of a less width. Price v. Town of Breckenridge, 92 Mo. 378, 5 S. W. 20; Lee v. Village of Sandy Hill, 40 N. Y. 442; Eckerson v. Village of Haverstraw, 162 N. Y. 652, 57 N. though some authorities hold that an acceptance of a dedication of lands for a street by the public authorities must take place within a reasonable time.152 The acceptance of a part of property dedicated by a plat will be considered as an acceptance of the whole. 153 Time of user. Neither is it essential to a valid dedication that the user of the property appropriated be immediate upon the dedication or acceptance.154 Public necessity will determine the time and extent of use.' 155 The reasonableness of this principle is established through well known conditions which exist in every town or city. Streets, public ways and pleasure grounds, are constantly dedicated far in advance of the existence of population necessary to their public use even to a slight extent. E. 1109; Iselin v. Star'n, 144 N. Y. 453, 39 N. E. 488; State v. Fisher, 117 N. C. 733, 23 S. E. 158; Simmons v. Cornell, 1 R. I. 519; City of Ashland v. Chicago & N. W. R. Co., 105 Wis. 398, 80 N. W. 1101. 152 Forsyth v. Dunnagan, 94 Cal. 438, 29 Pac. 770; Guthrie v. Town of New Haven, 31 Conn. 308; Schmitz v. Village of Germantown, 31 Ill. App. 284; Sarvis v. Caster, 116 Iowa, 707, 89 N. W. 84. The conditions and circumstances in which particular cases will determine what is a reasonable time for acceptance. Field v. Village of Manchester, 32 Mich. 279; Village of Grandville v. Jenison, 84 Mich. 54, 47 N. W. 600; Chaffee v. City of Aiken, 57 S. C. 507, 35 S. E. 800. 153 Town of Derby v. Alling, 40 Conn. 410; Attorney General V. Tarr, 148 Mass. 309, 19 N. E. 358, 2 L. R. A. 87. The acceptance of the whole of land dedicated to a public use as a landing place will be presumed from the actual use of portions of it. Raynor v. Syracuse University, 35 Misc. 83, 71 N. Y. Supp. 293. But see Jordan v. City of Chenoa, 166 Ill. 530, 47 N. E. 191; Com. v. Royce, 152 Pa. 88, 25 Atl. 162, where it is held that an acceptance of a street through its improvements is only an acceptance of so much as is actually opened and used. The opening and working of a part of a street is considered evidence of an acceptance of the entire street. See the following: City of Racine v. Chicago & N. W. R. Co., 92 Wis. 118, 65 N. W. 857, citing many Wisconsin cases, and City of Ashland v. Chicago & N. W. R. Co., 105 Wis. 398, 80 N. W. 1101. 154 Village of Augusta v. Tyner, 197 Ill. 242, 64 N. E. 378; Attorney General v. Tarr, 148 Mass. 309, 19 N. E. 358, 2 L. R. A. 87. 155 London & San Francisco Bank v. City of Oakland (C. C. A.) 90 Fed. 691, affirming 86 Fed. 30; Taraldson v. Town of Lime Springs, 92 Iowa, 187, 60 N. W. 658; Village of Grandville v. Jenison, 86 Mich. 567, 49 N. W. 544; Downend v. Kansas City, 71 Mo. App. 529; Methodist Episcopal Church v. City of Hoboken, 33 N. J. Law, 13; Reilly v. City of Racine, 51 Wis. 530. § 738. Acceptance usually a question for a jury. It has already been stated that the question of the owners intent to dedicate is one for a jury to determine,156 and the same rule holds with reference to the acceptance of a grant; it is for a jury to determine from all the conditions and circumstances surrounding each particular case the question of acceptance.157 In some instances it has been held, however, to be a mixed question of law and fact 158 and it is clearly a question of law where the facts are undisputed.159 § 739. Acquirement of property by prescription. Rights may be acquired through the operation of the statutes of limitation as they exist in the different states and a public corporation may, in the same manner as an individual, acquire for its own proper use as an agency of the public, property through the operation of the doctrine of prescription and by virtue of such statutes. The continuous and adverse possession of property for the statutory period presupposes and assumes the existence prior to that time of an affirmative record granting the rights or title in question. The property usually obtained by a public corporation through prescription is a highway or tract of land used either as a common or pleasure ground or as the site for the erection of public buildings. Land devoted to these purposes may be acquired either through the operation of some statute providing the manner in which private property may be set aside for a public use,100 through what is called a common-law dedication, where the grant is implied through the acts of the owner affirmative or negative in their character,161 or by prescription.162 Whether a high 156 See § 728, ante. 157 Hartford v. New York & N. E. R. Co., 59 Conn. 250, 22 Atl. 37; Grube v. Nichols, 36 Ill. 92; Flack v. Village of Green Island, 122 N. Y. 107. 158 Downend v. Kansas City, 71 Mo. App. 529. 159 Kennedy v. City of Cumberland, 65 Md. 514, 9 Atl. 234. 160 See § 724, ante. 161 Gwynn v. Homan, 15 Ind. 201; State v. Lane, 26 Iowa, 223. See § 710 et seq. ante. 162 Ely v. Parsons, 55 Conn. 83, 10 Atl. 499; Daniels v. People, 21 439; Brown v. Hines, 16 Ind. App. 1, 44 N. E. 655; Blumenthal v. State, 21 Ind. App. 665, 51 N. E. 496; Greene County Com'rs v. Huff, 91 Ind. 333; Kyle v. Kosciusko County Com'rs, 94 Ind. 115; Taft v. Commonwealth, 158 Mass. 526, 32 N. E. 1046. If a small portion of the travel over a way claimed by prescription is public in its character, it will be sufficient. Gould v. City of Boston, 120 Mass. way is established by one or the other of these three methods, it is equally a public way. The law accords no preference in strength of title to either; nor are any of the methods exclusive ones.163 The distinction between the establishment of a highway or public ground by what is termed statutory dedication, and prescription, is clearly understood. The difference between a dedication by common law and prescription is not so clear and is at times apparently confusing. The doctrine of prescription rests upon an open, notorious, exclusive and adverse possession and use under claim of right for the length of time prescribed by statute.1 164 A common-law dedication is based upon the existence of an intent on the part of the owner to appropriate certain of his property to a public use, its acceptance by the public, and this intent and acceptance are not dependent in any measure upon the length of time which the property may have been used by the 300; Weld v. Brooks, 152 Mass. 297. A private way opened by individuals made through adverse use by the public becomes a public highway by prescription. Vier v. City of Detroit, 111 Mich. 646, 70 N. W. 139; Maus v. City of Springfield, 101 Mo. 613, 14 S. W. 630; Stephens v. Murray, 132 Mo. 468, 34 S. W. 56; City of Steubenville v. King, 23 Ohio St. 610; Hall v. City of Austin, 20 Tex. Civ. App. 59, 48 S. W. 53; Galveston, H. & S. A. R. Co. v. Baudat, 21 Tex. Civ. App. 236, 51 S. W. 541. 163 Mosier v. Vincent, 34 Iowa, 478; Ball v. Cox, 29 W. Va. 407, 1 S. E. 673. 164 Western R. of Ala. v. Alabama G. T. R. Co., 96 Ala. 272, 11 So. 483, 17 L. R. A. 474. Twenty years. City of New Haven v. New York, N. H. & H. R. Co., 72 Conn. 225, 44 Atl. 31. Forty years. Town of Lewiston v. Proctor, 27 Ill. 414. Twenty years. O'Connell v. Chicago Terminal & Transfer R. Co., 184 Ill. 308, 56 N. E. 355; State v. Welpton, 34 Iowa, 144. State v. Tucker, 36 Iowa, 485. To establish a highway by prescription there must be an open, uninterrupted use by the public under a claim of right for a period equal to that for the limitation of real actions. Kelsey v. Furman, 36 Iowa, 614. A deviation in travel caused by an obstacle in a road originally established will, if continued in for the statutory period, create a prescriptive right. Ten years. McAllister v. Pickup, 84 Iowa, 65; Kentucky Cent. R. Co. v. City of Paris, 16 Ky. L. R. 170, 27 S. W. 84. Thirtyfive years. Bassett v. Inhabitants of Harwich, 180 Mass. 585, 62 N. E. 974. Twenty years. Taft v. Commonwealth, 158 Mass. 526; Schroeder v. Village of Onekama, 95 Mich. 25; Elfelt v. Stillwater St. R. Co., 53 Minn. 68; Warren County v. Mastronardi, 76 Miss. 273; State v. Auchard, 22 Mont. 14; Bryant v. Town of Tamworth, 68 N. H. 483; State v. Wolf, 112 N. C. 889; State v. Lucas, 124 N. C. 804, 32 S. E. 553; Bayard v. Standard Oil Co., 38 Or. 438, 63 Pac. 614; Moore v. City of Waco, 85 Tex. 206. |