Hayden v. Stone, 112 Mass. 346

Hayden v. Stone

112 Mass. 346 | Mass. | 1873

Endicott, J.

A highway by dedication could be created in this Commonwealth prior to the St. 1846, c. 203, by the owner of the land dedicating the particular parcel to the use of the public for the purposes of a highway, and the acceptance of the gift or the acquiescing in such use by the city or town bound to keep it in repair. Hobbs v. Lowell, 19 Pick. 405. Bowers v. Suffolk Manufacturing Co. 4 Cush. 332, 340. The intent so to dedicate must be made manifest by the unequivocal declarations or acts of the owner. If the intent so to do is not clearly established, there is no highway. In Hobbs v. Lowell, Chief Justice Shaw said: “ The great question has been whether particular acts have been such as clearly to indicate the intent of the owner of the soil to appropriate it to public use.” In Hemphill v. Boston, 8 Cush. 195, dedication is described as a gift of the land by the owner for a way; and in Rowland v. Bangs, 102 Mass. 299, 303, it was said “ there was nothing to show a purpose on the part of the owner of the soil to surrender its control to the public.” Similar language is used in Wright v. Tukey, 3 Cush. 290, and in Durgin v. Lowell, 3 Allen, 398. In Barraclough v. Johnson, 8 A. & E. 99, the court said that a dedication must be made with an intention to dedicate, and that the question is always on the intention of the owner. The authorities are cited and considered at great length in Irwin v. Dixion, 9 How. 10, and it was held that a dedication to a public use is made by an intent of the owner of the land sufficiently manifested by some act or declaration by him, and when such intent cannot be found, no dedication is made.

When the intent to dedicate is declared or made manifest, and such dedication is accepted, the land becomes subject to the easement of a public way. No specific length of time is necessary ; the acts of the parties to the dedication when once established complete it. The essential element is, therefore, the intent *350on the part of the owner, followed by acceptance. When the way is accepted, the owner cannot withdraw his dedication. Crocket v. Boston, 5 Cush. 182. Mere user cannot establish it, nor is user by the public essential or necessary to its establishment. A way may be dedicated by the owner, accepted by the town or city authorities, and it becomes at once a way, although never used by the public or essential to the public accommodation. Evidence of user is competent, and often important, as bearing on the question of dedication, when that is in dispute ; for if a man stands by, seeing the public use a way, permits it, and says nothing, it is very strong evidence to show an intention to dedicate ; on the other hand it bears also on the question of acceptance, though in Massachusetts mere user by the public is not sufficient in the absence of any evidence of acceptance or acquiescence in the use on the part of the town or pity bound to keep it in repair; it is competent, however, as having some tendency to show acceptance on the part of the town.

As mere user cannot create a way by dedication, it is immaterial that it has been enjoyed by the public under a well founded belief that there was an intent to dedicate; and the fact that the public will be incommoded by being deprived of the use cannot change the rights of the parties in the absence of the intent to dedicate. It was said by Lord Denman, in Barraclough v. Johnson, supra, that the mere acting so as to lead persons into the supposition that the way was dedicated does not amount to a dedication. Such acts may be proof of intent, but they may be explained, and may be entirely consistent with another and different intent. See Bowers v. Suffolk Manuf. Co., supra.

It follows, therefore, that the learned judge erred in his specific instruction to the jury on this branch of the case. The substance of the instruction was, that if the conduct and declarations of Clarke led to the well founded belief on the part of the public that the land was dedicated to be used as a highway, and such use began and continued with Clarke’s knowledge, and the withdrawal of such dedication would seriously affect the public convenience, the dedication on the part of Clarke would have been consummated, although Clarke had no intent to dedicate. Oa *351this instruction, although the jury should expressly find that Clarke, acting in good faith, had no intent by such acts and declarations as he made to dedicate this land to a public use, still they might find a dedication if the public used it supposing it had been dedicated, and with his knowledge, and would be seriously incommoded by being deprived of the use. Such use under such circumstances would be strong evidence to prove intent and consequently dedication by Clarke, but could not supply the place of intent or justify a verdict when it appeared distinctly that he had no such intent.

The authorities that the intent of the owner is a necessary and vital element to establish a dedication, are conclusive upon this point.

There is another objection to this ruling which is decisive, and as there must be a new trial, it is proper to consider it. It authorizes the jury to find the acceptance of the dedication, if there was a dedication, from the use on the part of the public, and not from the acceptance or acquiescence in the dedication by the town or its officers acting within the scope of their authority. It was intimated in Hobbs v. Lowell, that without such acceptance or acquiescence by the town a way could not be considered a public way, although dedicated as such; this view was confirmed in Bowers v. Suffolk Manuf. Co.; and in Morse v. Stocker, 1 Allen, 150, the authorities and statutes were reviewed, and it was there stated that prior to the St. 1846, c. 203, no way or street could be made a public way merely by throwing it open to the public, or in other words by dedication on the part of the owner or permitting the public to use it, without the assent by the public authorities, and its acceptance as a street by them; and that since the St. 1846 this assent and acceptance could only be given by laying out the street according to law. See Rowland v. Bangs, and Durgin v. Lowell, supra.

The instruction to the jury, therefore, should have been in accordance with the rule there laid down applying to dedications prior to 1846; that there could be no acceptance of the dedication merely by the use made by the public, but the jury must find the acceptance or acquiescence of the town to the dedication *352and its use as a way. The use of the public is competent evidence, as bearing upon the question of the acceptance by the town.

The testimony of Edwards was competent. Whether the fact that Lathrop did not say at the time of the appraisal that Clarke owned below the fence, was entitled to any weight in considering his testimony, was for the jury to determine. Fisher v. Plimpton, 97 Mass. 441. Brigham v. Clark, 100 Mass. 430. Hook v. George, 108 Mass. 324.

The defendant, having obtained a verdict, is not now aggrieved by the ruling against him at the trial, and sustaining his exceptions could be followed by no judgment in his favor. If the evidence should be the same at the new trial, he may then raise the question presented by his bill of exceptions. It is not open at this time. Plaintiff’s exceptions sustained.