Bushnell v. Scott

21 Wis. 451 | Wis. | 1867

Cole, J.

We are of the opinion that the charge of the court in this case was as favorable to the defendant as the facts would warrant. The law in respect to dedication was correctly defined as being an appropriation of land by its owner for any general and public use, the owner reserving to himself no other rights in the soil than such as are perfectly compatible with the full exercise and enjoyment of the public use to which the property has been devoted. Gardner v. Tisdale, 2 Wis., 153; Connehan v. Ford, 9 id., 240; Irwin v. Dixion, 9 How. (U. S.), 10. The court instructed the jury that an intention on the part of the owner to dedicate must be shown, as well as an actual appropriation of the property by the public for the uses to which it is dedicated ; and further that the acts of plaintiff in building the fence, and permitting the road to be opened and -worked, were binding upon Richards only so far as he had authority from Eichards to do those acts;' and that it was entirely immaterial whether the plaintiff upon his own behalf did acts of dedication of the premises in question, before he became owner of the same. That no one but the owner, or his duly authorized agent, can dedicate property to the public use, is a proposition too clear to require the citation of authorities in its support. The idea of dedication involves, of necessity, an act of the owner indicating an intention to part with the exclusive dominion and enjoyment of his land, and to abandon or devote it to some public use. A. certainly has no right to dedicate B.’s property to the use of the public. Dedication must rest on the clear assent of the owner of the land, in some way manifested, to such dedication. In this case the court charged the jury, in effect, that it was quite immaterial that a stranger performed acts in respect to land which might amount to a dedication of it if he had been the owner; that such acts could not affect the owner, or amount to a dedication, unless done with bis consent or by his authority. We suppose a person, unless authorized so to 'do, can no more dedicate another’s land to the use of the public, than he can convey it by deed.

A new trial was granted on the ground that the circuit judge supposed he had fallen into an error in charging the jury that it was entirely immaterial whether the plaintiff upon his own behalf did acts of dedication of the premises in question, before he became the owner. The court seems to have supposed that the plaintiff, by aiding in building a fence upon the land, and in permitting a road to be opened and worked upon it, was estopped, after he became the owner, from contesting the question of dedication by his grantor. But if the plaintiff had no interest whatever in the land, no right to perform any act of dedication in reference to it, when the fence was built and the alleged road opened over it, upon what principle can it be claimed that he is estopped from showing, when he afterwards acquired title, that the owner never did dedicate it to the pub-lie? The court beld tliat the fact that the road was opened and in public use as a highway when the plaintiff received a conveyance of the premises, was constructive notice to him of the rights of the public, whatever those rights were, and that he was in the same position his grantor Einhards would have been in, had he retained the title to the land. If nothing was done by Eichards tending to show a dedication of the locus in quo to the public for a highway, we do not think the plaintiff's rights were affected by his own acts done before he acquired title.

This point is the only one in the case we deem it necessary to notice.

We are of the opinion the circuit court erred in granting a new trial.

By the Oourt. — The order granting a new trial is reversed.