* these, and like cases, there may be an extinguishment of [*123] right by positive limitations of time, by estoppels, by statutable compensations and authorities, by election of other beneficial bequests, by conflicting equities, and by other means. The presumption would be just as operative, as to these modes of extinguishment of a common right, as to the mode of extinguishment by grant." 1 In Lamb v. Crossland, the court insist, as already stated, that Story, J., did not make the proper distinction between a prescription, properly so called, and a presumption of a non-existing grant, the latter of which arises after an enjoyment for twenty years, the former goes beyond legal memory.2 And Putnam, J., in Sargent v. Ballard, says: "We cannot suppose that the mere use of the easement for twenty years is conclusive of the right, nor do we think that was the meaning of Story, J., in Tyler v. Wilkinson. He could not have intended an enjoyment which had been by favor, and at the will of the owner for twenty years." And in Watkins v. Peck, the Chief Justice says: "It would be absurd to presume a grant where it was clear that no such grant could have existed." 4 This subject has already been treated of, and was only resumed from its connection with the doctrine of a suspension of prescription, under certain circumstances, in case of a personal disability of the owner of a servient estate. Nor does the distinction seem to be of sufficient practical consequence to occupy much time in its discussion. But it was resumed by the court of New Hampshire, in Wallace v. Fletcher, already referred to, where it is said, "the current of English authorities has gone no further than to hold that long-continued and uninterrupted possession is evidence from which a jury may Tyler v. Wilkinson, 4 Mason, 402. See also Mebane v. Patrick, 1 Jones (N. C.), 23. 2 Lamb v. Crossland, 4 Rich. 536. 3 Sargent v. Ballard, 9 Pick. 251. See also 3 Kent, Comm. 444; Colvin v. Burnet, 17 Wend. 564; Nichols v. Aylor, 7 Leigh, 546; Yard v. Ford, 2 Wms. Saund. 175, note; Mayor of Hull v. Horner, Cowp. 102; Parker v. Foote, 19 Wend. 309, 315; ante, pl. 73. Watkins v. Peck, 13 N. H. 377. 5 Wallace v. Fletcher, 10 Foster, 446. See also Hall v. M'Leod, 2 Metc. (Ky.) 98, that twenty years' enjoyment is only evidence: it raises a presumption, but not a prescription. presume a deed." But the judge (Bell) maintains that, by the American law, such an enjoyment is something more than a presumption. He quotes 2 Greenl. Ev. § 539, and the authorities there cited, as well as sundry others, and concludes, that "this may properly be regarded as a species of prescription established here by a course of judicial decisions, by analogy to the statute of limitations of real actions." But the admission he makes of the exceptions there must be to this as a positive rule of prescription, really seems to leave it very much where the cases of Sargent v. Ballard and Watkins v. Peck had done, that, in order to be conclusive, it must be shown affirmatively to have all the qualities of an adverse enjoyment: 1, for the requisite time; 2, against the owner of the estate who was in a condition to grant the easement, and who, 3, had knowledge of and did not object to the uses by which the right was acquired. *SECTION V. [* 124] OF EASEMENTS BY PUBLIC PRESCRIPTION AND DEDICATION. 1. Public as distinct from private prescription. 2. Towns and corporations may prescribe for ways. 3. Towns may prescribe for pasturage. 4. Towns may prescribe for gates in highways. 5. Prescription for town ways and public highways. 6. No prescription in favor of "the public," but a dedication. 7. Larned v. Larned. Case of a dedication of a way. 7 a. Dedication must be to the public, how it may be made. 8. Jennings v. Tisbury. Case of a highway by prescription. 10. Dedication a concurrent act of land-owner and the public. 12. Intention, essential to a dedication. 12 a. Effect of leaving land open and used by the public, when a dedication. 13. User not enough, if owner intends not to dedicate. 14. Dedication may be for special purposes only. 15. To what uses lands, &c., may be dedicated. 16. In dedication, owner does not part with the fee. 17. Dedication may be by a single act. 18. Of land-owners' interest in lands dedicated to the public. 19. Dedication requires no deed of grant, act in pais sufficient. 20. Dedication once made is irrevocable. 21. As to time requisite to create a dedication. 22. Dedication inferred from sale of city lots with plans of streets. 23. Clements v. West Troy. Way appurtenant to lots, though not dedicated. 24. Bowers v. Suffolk Manufacturing Company. Same subject. 25. Owner of soil may not obstruct a dedicated way. 28. Owner may not resume lands actually dedicated. 34. Common law prevails as to squares, &c. 35. Public cannot insist on dedication against wish of owner. 36. Case of a way opened for owner's convenience. 37. Gowen v. Philadelphia Exchange Company. Open land not dedicated. 38. New Orleans v. United States. What passes under a dedication. 39. State v. Trask. Case of dedication of a public square. 40. Abbott v. Mills. Dedication inferred from mode of building. 41. Hunter v. Trustees, &c. General subject of dedicating lands. 42. Who has charge of dedicated lands. 43. Individual may prescribe against a dedicated right. 44. In what dedication consists, its incidents and effects. 46. What time requisite to create a dedication. [*125] *1. Ir has already been stated, that public corporate bodies, like the inhabitants of towns, may acquire rights in the nature of easements, by continued corporate acts of enjoyment, amounting to a prescription. The subject is in some respects so far distinct from mere private prescriptions, that it has been reserved for a place by itself, to be followed by that of rights acquired by dedication, though, as will appear, these differ in many essential particulars. But the effect in the matter of ways, which is given in many cases, to a user, in establishing a public way and a dedication of a way to public use, are so nearly identical, that they can hardly be treated of separately. A way, however, which is gained by a corporate body by prescription, properly so called, is limited to the use of those constituting that body. It is strictly a private easement, and does not come within the category of public ways.1 2. In a dissenting opinion, in Commonwealth v. Newbury, Putnam, J., says: "I am of opinion that the inhabitants of a town may prescribe for a way, as well as individuals." 2 He cites a 1 Bermondsey v. Brown, L. R. 1 Eq. Cas. 204; Wilder v. St. Paul, 12 Min. 200, 201. See Day v. Allender, 22 Md. 525. 2 Commonwealth v. Newbury, 2 Pick. 51. remark, "that the prescription may be that the usage of the vill D. has been time out of mind that the inhabitants, &c., have had a way over the land of the plaintiff to the church, &c., and that the inhabitants may prescribe for an easement."1 In Commonwealth v. Low, the court say: "There is no doubt that the inhabitants of a town, in their corporate capacity, are capable of taking an easement or other incorporeal hereditament, and that they may become seised of a right of way by grant, prescription, or reservation. A grant, also, may be presumed from continued occupation, as well in favor of a corporation as of an individual. . . . If a grant of the way be presumed, it will not support the indictment. It will operate in favor of the town only, and will give no right of passage to any but the inhabitants. It will be technically a private way, and any person other [*126] than an inhabitant passing upon it will be a trespasser." 2 3. So in New York, the court held that the inhabitants of a town might gain a right of easement of pasturage by prescription or grant, and that, consequently, any inhabitant of the town might turn his sheep upon the land without thereby being a trespasser. 4. So it was held that the inhabitants of a town might prescribe for a right to maintain a gate across a highway, when the same was necessary to preserve the grass in the close through which it leads.1 5. The language, however, of the courts in many cases would lead one to infer that ways for public use, whether town ways or public highways, might be established by prescription. Thus in Stedman v. Southbridge it is said: "It has been argued as if the question was, whether a town way, under any circumstances, can be proved by prescription or by presumption, arising from use and enjoyment. It is, perhaps, too much to say that such a way, or any other kind of easement cannot be thus proved, but it would be manifestly difficult, because, in general, the facts which would tend to prove the existence of such a way would prove the larger easement of a public highway." 5 1 17 Viner, Abr. 256; Nudd v. Hobbs, 17 N. H. 525. 2 Commonwealth v. Low, 3 Pick. 408; Smith v. Kinard, 2 Hill (S. C.), 642; Green v. Chelsea, 24 Pick. 71; Avery v. Stewart, 1 Cush. 496. 3 Rose v. Bunn, 21 N. Y. 275. 4 Spear v. Bicknell, 5 Mass. 124. 5 Stedman v. Southbridge, 17 Pick. 162; post, p. *142. The use of a way by the public for twenty years gives a prescriptive right of a public as well as a similar user does of a private way, and this right, when once established, continues until it is clearly and unmistakably abandoned. A transient or partial non-user will not work an abandonment. It must be total, and of sufficient length of time.1 And if the only evidence of a dedication be a public user, with the acquiescence of the owner, a user for the term of twenty years must be proved, or a time corresponding to the period of limitations in the state in which the land lies.2. So the width and extent of the way must be determined by the limits of the actual user and occupation by the public. But to establish a public way by prescription, there must have been a user for twenty years in substantially the same line and direction, and if a line once used is abandoned, and another adopted changing, in fact, the thread of the road, and it remains so for eight or nine years, it is not such a continuous use as to establish a presumptive right.* So in Avery v. Stewart, it is said: "It may be difficult to decide whether the long user of a way by the inhabitants of a town, and by others, would authorize the presumption of its being a public highway or a town-way."5 Now, in all these cases, it is apprehended the court intended to speak of a way open for the use of all persons indiscrimi[*127] nately, whether known and called a town or a * public way or road, and not a mere private way, belonging only to the inhabitants of a town. The court say, in Commonwealth v. Low: "Ways of various kinds may be proved, not only by prescription, but by a continued and uninterrupted use of them for a period much within the memory of man. And it cannot be doubted that public highways may be shown by evidence of a user, as well as by the record of their laying out." 7 Lewiston v. Proctor, 27 Ill. 417. 2 Beall v. Clare, 6 Bush, 680. 3 Morse v. Ranno, 32 Verm. 600, 607; Dodge v. Stacey, 39 Verm. 576. 4 Gentleman v. Soule, 32 Ill. 278. 5 Avery v. Stewart, 1 Cush. 496. Craigie v. Mellen, 6 Mass. 7; Commonwealth v. Low, 3 Pick. 408; Valentine v. Boston, 22 Pick. 75. See Nash v. Peden, 1 Speers, 17. 7 Commonwealth v. Low, 3 Pick. 412. |