but to be used as a street, it would become effectually dedicated if thus used. But if it be a distinct square, not intended for a passage-way, there must be, if it is in a city, an acceptance of it by the city officers or public agent. And where a square in a village had been dedicated by the owner, and the people of the village joined with him in levelling and fitting it for use, it was held to be an effectual dedication.1 In Virginia, it is held that no way can become a public one by dedication until it has been accepted by an act of the county and made a matter of record. Any use of it before that, is considered as done by license which the owner may at any time revoke, no matter how long enjoyed.2 The same may be assumed to be the law in Massachusetts, since the statute of 1846, whereby no way can become public by dedication until accepted and established in the mode therein pointed out.3 In Missouri, when one lays down upon the plat of a town a way or street, and opens it under such circumstances as to show a clear intent to dedicate it to the public, and the public take possession of it accordingly, it would become a public way without the necessity of an ordinance of the city to that effect.4 But the distinction already referred to is to be kept in mind, between the uses to be made by the public of what is dedicated, and those which individual proprietors may exercise by reason of owning lands adjoining that which has been dedicated to the public. Thus, where the United States dedicated the bank of a public river to the use of the public, and then sold house-lots in reference to such public use and accommodation, it was held that neither the United States nor the city of B. to which the United States had transferred their rights of soil could abrogate this public use or dispose of the bank to private uses. The owners of lots bordering upon it would have such an easement in it that they would have an injunction against its being devoted to private uses by the city, or being sold to private individuals. This did not, however, affect the right of the city to authorize the construction of a railroad across the same, since that would, in itself, be a public use.5 1 Baker v. Johnson, 21 Mich. 319-351. 8 Rowland v. Bangs, 102 Mass. 302. 5 Cook v. Burlington, 30 Iowa, 94, 106. 2 Kelly's Case, 8 Grat. 632. So if one dedicates land as a public street, and then sells lots bordering upon it to persons who erect houses upon the same, they have such an interest in the street, that they might have an injunction against the proprietors of a railroad who should undertake to lay down the track of their road within and along such street, since to them it works a private nuisance.1 The same principle was applied in case of a dedication of a public square, if the owner sell lots bounding upon it, the easement of enjoying it as such becomes appurtenant to such lots, into whosesoever hands they may come.2 So in New Jersey, where one laid out a village upon a plat, with streets and lots indicated thereon, and filed the same in the proper public office, and then proceeded to sell these lots, it was held to be a dedication of the streets to public use. But it would not bind the town or village to maintain them as public streets or highways, until the same should have been accepted by the proper municipal authorities, and declared such by them accordingly. After such laying out, however, the town or village may accept these streets at their discretion, at any time, and convert them, by so doing, into public highways, without incurring thereby a liability to make compensation to the land owner for taking his land.3 46. As to the time requisite in effecting a complete dedication, where the owner has undertaken to make it, by expressing his intention by his acts, much has been said by different courts, by the way of analogy, treating it as an open question to be determined by the jury in each particular case. Thus one test, as to time, has been whether the thing dedicated has been used by the public for such a length of time that their accommodation and the enjoyment of private rights would be materially affected by an interruption of such a user; and this is to be judged of by the jury. If the public have enjoyed it for the period of statute limitation, it establishes the dedication.5 And if it be a street, and 1 Schurmeier v. St. Paul, 10 Minn. 82, 104, 106. 2 Fisher v. Beard, 32 Iowa, 346. Pope v. Union, 3 C. E. Green, 282; Trustees, &c. v. Hoboken, 33 N. J. (Law) 13. 4 Case v. Favier, 12 Minn. 97; McMannis v. Butler, 51 Barb. 449; Buchannan v. Curtis, 25 Wis. 99. [Prudden v. Lindsley, 29 N. J. Eq. 615; Topper v. Huson, 46 Wis. 646; 250 THE LAW OF EASEMENTS AND SERVITUDES. [CH. I. the owner has sold building lots upon it, thereby inducing others to make use of it, it would not require that length of time of adverse use by the public to give it the character of a public highway. But the better opinion seems now to be established, that if the act of dedication be unequivocal, it takes effect at once; and, if it be a way, it becomes, ipso facto, a highway the moment it is dedicated and accepted as such by the public.2 And this is in accordance with what has so often been said, that dedication is not a grant, requiring a deed or prescription to establish it, but operates by way of estoppel in pais, and may result from parol declarations accompanied by acts done.3 An incident to the dedication of the bank of a river to the public would be that all increments thereto, by alluvion, would belong to the bank, and have the same incidents, when so united, as the bank itself had.4 State v. Green, 41 Iowa, 693; Sullivan v. State, 52 Ind. 309. Cf. Sharp v. Mynatt, 1 Lea (Tenn.), 375.] 1 Morse v. Ranno, 32 Vt. 600; Hutto v. Tindall, 6 Rich. (Law) 396, 400; Irwin v. Dixion, 9 How. 30, 31. 2 Rees v. Chicago, 38 Ill. 322; Fisher v. Beard, 32 Iowa, 346; Wilder v. St. Paul, 12 Minn. 200; Harding v. Jasper, 14 Cal. 642; Mankoto v. Willard, 13 Minn. 18; Case v. Favier, sup. ; San Francisco v. Calderwood, 31 Cal. 589; Hutto v. Tindall, 6 Rich. (Law) 402. 3 Wilder v. St. Paul, sup. 204; Green v. Canaan, 29 Conn. 172; ante, p. *139; Lee v. Lake, 14 Mich. 17. 4 Cook v. Burlington, sup. [226] *CHAPTER II. EASEMENTS AND SERVITUDES OF WAY. [* 158] SECT. 1. Ways defined, and how they affect the Right of Freehold. SECT. 5. Rights of the Owners of the Land and of the Way, in the Land. SECTION I. WAYS DEFINED, AND HOW THEY AFFECT THE RIGHT OF FREEHOLD. 1. Rights of servitude do not affect general rights of property 2. Rights of land-owners in the soil of highways. 3. Of ways, and their several classes. 3a. Land-owner may maintain gates across private way. 4. Divisions of ways in the civil law. 5. Ways when in gross and when appendant, &c. 1. PASSING from the modes in which easements may be acquired, to the rules which apply to the several classes into which they are divided in reference to the subject-matters to which they relate, it may be remarked, that the existence of a servitude upon an estate does not affect the general rights of property in the same. All these remain, subject only to the enjoyment of the existing easement. Thus it is no objection to the owner of the fee maintaining a writ of entry against one, that he has an easement of a right of way over the demanded premises. The rights are independent, and each owner may have an appropriate action to vindicate or establish his right, the one to protect his seisin, the other to prevent the disturbance of his * easement with- [* 159] out having any right to recover the land itself in a real action. And yet it has been held, in Pennsylvania, that the 1 Morgan v. Moore, 3 Gray, 319; Hancock v. Wentworth, 5 Met 446; Jerman v. Mathews, 2 Bail. 271; Atkins v. Bordman, 2 Met. 457; Winslow v. King, 14 Gray, 321; Miller v. Miller, 4 Pick. 244; Perley v. Chandler, 6 Mass. existence and exercise of a private way over granted premises, is an eviction, pro tanto, so far as to be the ground of an action upon the covenant of warranty in a deed.1 2. Highways, for instance, are regarded as easements. The public acquire, by their location, a right of way, with the powers and privileges incident to that right, such as digging the soil, using the timber and other materials found within the limits of the road, in a reasonable manner, for the purpose of making and repairing the road and its bridges. [ED. The easement of the public in a highway includes all forms of travel not prohibited by law, and may be modified as new improvements are discovered. It includes the use of streets by horse-railways under proper restrictions, without payment of additional damages to the owner of the adjoining land, since no additional servitude is thus imposed.2 But the easement of the public does not include the use of a street by a steam railroad, nor by an elevated railroad, even if the city owns the fee of the street. The city in such case owns the fee subject to the easement of the public and adjoining land-owners of passage, and also an easement of light and air for the adjoining houses. If it licenses the building of a structure which obstructs these, as an elevated railroad, it is bound to make compensation therefor.* But the easement of the public in a way has been somewhat enlarged so as to include, besides modes of travel, modes of communicating intelligence between points connected by the highway. Thus in Pierce v. Drew 5 it was held that the erection of telegraph poles in a highway by permission of the town was a proper use of the way, and did not give the land-owners any claim for damages.] The former proprietor of the soil still retains his exclusive 454; Pomeroy v. Mills, 3 Vt. 279; Matter of Seventeenth Street, 1 Wend. 262; Viner, Abr., Chimin Private, B.; Underwood v. Carney, 1 Cush. 292; O’Linda v. Lothrop, 21 Pick. 292; Green v. Chelsea, 24 Pick. 71; Lade v. Shepherd, 2 Strange, 1004; Jackson v. Hathaway, 15 Johns. 447; Westbrook v. North, 2 Me. 179; Maxwell v. M'Atee, 9 B. Monr. 20; Cobb v. Davenport, 4 Vroom, 225. 1 Wilson v. Cockran, 46 Penn. 233. [So, of a public way or railway location, Burk v. Hill, 48 Ind. 52.] 2 [Attorney-General v. Metropolitan Railroad, 125 Mass. 515.] 8 [Southern Pacific Railroad v. Reed, 41 Cal. 256; Williams v. N. Y Cent. R. R., 16 N. Y. 97.] 4 [Story v. N. Y. Elevated R. R. Co., 90 N. Y. 622.] 5 [136 Mass. 75.] |