The exceptions in this case arise mainly upon the instructions. That the court was right in qualifying the first instruction asked, there can be no doubt. The position that the jury, in determining the question whether a street had been dedicated by the owner, and accepted by the public authorities as a street, might consider whether' any of the land had been actually enclosed and occupied as private property, and that if it had been so enclosed and occupied for sixteen years, that was conclusive evidence that no dedication had been made, seems to us utterly erroneous. Suppose a person not claiming through, or in any way connected with, the title of the original owner
The error in the second instruction asked consists in stating that it was essential to a complete dedication of a street, not only that the public should actually accept the dedication, but that it should actually lay out and use the same as a street. In this connection the court instructed the jury, that to establish a parol dedication of land to the public, unequivocal acts of the owner of the fee must be shown, proving his intention to make an actual dedication of the premises; and that unless they believed from the evidence that Lawrence, or some owner of the fee of the property in question, actually intended a present dedication of the premises in dispute to the public as a street, the plaintiff was entitled to recover damages for invading his inclosure. The criticism made upon this part of the charge is, that the jury were not likewise told, that to constitute a valid dedication, an acceptance, laying out and use of the street as such by the public, was necessary. It is true, that idea was not embraced in this prop.osition. But the jury were subsequently told, in distinct language, that it must appear that the dedication was accepted by the public. Indeed, that idea is so frequently and prominently put forth by the court in other parts of the charge, that it is impossible the jury could have been misled upon the subject. For they were instructed, that, while there need be no formal acceptance of the dedication on the part of the public, but use of the same as a street would
The deed from Lawrence to Beach did, in our judgment, tend strongly to prove a dedication of the space for a street. It conveyed a strip of land in the south part of the block, forty-five feet in width on College avenue, extending back, between parallel rectangular lines, one hundred and twenty feet, and a piece on the north part of the block, bounded on the east by a line commencing on the south line of Edwards street, one hundred and twelve feet east of the junction of that line with the east line of Morrison street, “ thence southward on a line parallel with Morrison street 140 feet, to a reserve for a street running east and west through said Mock”
The court was further asked to charge, that an acceptance of the dedication of the land in dispute by the public authorities
The only remaining part of the charge which we think it necessary to notice, is the second instruction given at the request of the defendants. That instruction was, “that if Reeder Smith was agent for Lawrence for the sale of lots by contract, which contracts were afterward recognized by him, and deeds issued thereon, Lawrence is bound by any representation made by Smith in reference to streets at the time of entering into said contracts. And if said agent dedicated any lands in manner aforesaid, at the time of sales, Lawrence and his assigns are estopped from reclaiming the same.”
It appears from Smith’s testimony, that he first came to Appleton under verbal authority from Lawrence to-purchase a town site, and lay out a town, and to draw on Lawrence for money. Afterward Lawrence sent him written instructions in regard to what he was to do with the property purchased at that place. Lawrence authorized Smith to retain charge of the land which he had purchased or might purchase for him, and
The other instructions given on behalf of the defendants are so obviously correct that they require no special notice.
We have not commented on all the exceptions taken in the case, but it is believed that we have disposéd of the material questions arising upon the record.
By the Court. — The judgment of the circuit court is affirmed.