82 A. 716 | N.H. | 1912
When the Amoskeag Manufacturing Company platted the lands east and west of the Valley Cemetery, dividing them into a system of lots and proposed streets, and sold the lots, bounding them upon the streets and referring to the plan for further description, they conveyed to the several purchasers, in addition to the lots, the fee in the soil to the center of the street or streets upon which each lot abutted and rights of passage in the other half of such streets (Manchester v. Hodge,
In addition to conveying these private rights in the proposed streets, the company by thus platting and selling the lots manifested an unequivocal intention to dedicate the streets to public use, and they are therefore to be regarded as dedicated to such use. Walker v. Manchester,
Whether an acceptance of the dedicated streets is necessary to perfect the gift and vest the right of passage in the public, is a matter upon which different conclusions have been reached, due no doubt to a failure to distinguish between what is necessary to vest the right of passage in the public and what is necessary to constitute an acceptance such as will render the city or municipality responsible for the construction and maintenance of the streets. In New Jersey, the courts have kept this distinction in mind and they state their conclusion in this way: "Where the question is whether the way dedicated has become a public highway, so as to impose upon the public authorities a duty to amend or repair, an acceptance on their part is essential to that end. . . . But an acceptance by the public authorities, or public user, is not essential to conclude the owner from his power of retraction, when his intention to abandon his property and dedicate it to public uses is once unequivocally manifested. In that event, the right of the public to appropriate the lands to the public use, at any time when their wants or convenience require it, immediately attaches." Trustees v. Hoboken, supra, and cases before cited. This holding is an application of the same rule to a dedication of public rights of passage in a proposed street as is ordinarily applied in the case of a gift as between individuals namely, that its acceptance will be presumed if the gift is beneficial. And in jurisdictions where no obligation is cast upon the municipality for the construction and maintenance of proposed streets until legally established as public highways, there would condition imposed by the donor, the dedicated public right of passage over the streets should not be regarded as beneficial and an acceptance presumed. As a rule, it would clearly be beneficial; *350 for upon the establishment of public highways over the proposed streets, the public would be relieved from the payment of land damages.
In England, there seems to be a diversity of opinion as to whether an acceptance is even necessary to charge a parish or municipality with the duty of constructing and maintaining a way dedicated to public use, the later holdings being that it is not. Rex v. Leake, 5 B. Ad. 469; State v. New Boston,
In this state, prior to 1842, the selectmen, in whom was vested the power to lay out highways, could accept a way dedicated to the public "by a direct record of acceptance (Hopkins v. Crombie,
Whether the power is vested in any body short of the legislature to release the dedicated lands and discharge the public servitude, we need not inquire. South Amboy v. Railroad,
The right of passage in Grove street having vested in the public when the street was dedicated to public use, the appellants were not entitled to an award of damages when the public authorities laid out the street as a public highway. According to the agreement of the parties the order is,
Judgment for the appellees for costs.
All concurred.