58 Tex. 551 | Tex. | 1883
A highway may be created by a dedication. or donation by the owner of his lands for that purpose, when such dedication has been accepted or recognized as a highway by the proper public authorities, or when the same has been accepted and used as such by the public. Noyes v. Ward, 19 Conn., 250; State v. Wilson, 42 Me., 9; Holcroft v. King, 25 Ind., 352; State v. Atherton, 16 N. H., 203; Princeton v. Templeton, 71 Ill., 68.
An intent to dedicate the land for the purpose of the highway by the owner must be shown by his acts and declarations; and such acts and declarations should clearly and unmistakably show that he intended to dedicate the land absolutely and irrevocably to the use of the public. David v. New Orleans, 16 La. Ann., 404; Niagara Falls, etc., v. Bachman, 66 N. Y., 261; San Francisco v. Canavan, 42 Cal., 541. And the fact that the way may have no outlet, or may terminate in a private road, does not prevent a dedication to public use. Bartlett v. Bangor, 67 Me., 460.
As was said by Chief Justice Wheeler in Oswald v. Grenet, 22 Tex., 99, “ Kespecting what will amount to or may be received as evidence of a dedication, the law is too well settled to admit of controversy. A setting apart, or dedication to a public use, to be effectual, need not be by deed; nor need it be evidenced by the use of it having been continued for any particular time; it is enough that there has been some clear, unequivocal act or declaration of the proprietor, evidencing an intention to set it apart for a public use, and that others have acted in reference to and upon the faith of such manifestation of intention. If the act of dedication be unequivocal, it may take place immediately. If there be no such act, it may be evidenced by an uninterrupted use, and that need not be for any particular time.”
However, the owner may, without any intention of dedication, permit the public for any length of time to use a way, and this would not constitute a dedication, but a license which might be revoked at pleasure by the owner. For in such case one of the essential elements of a dedication is wanting, that is-, the intent of the owner to make the gift.
The real controversy in this case was as to the intention of William Freís in leaving this way open. Upon the one hand it was contended that he intended to dedicate it to the public as a higlnvay, and there was considerable testimony adduced tending to support that side of the issue. On the other hand it was contended that he did not intend it as a dedication to the public, but as a private way for his own convenience, and that the use of it by the public was
The court in effect charged the jury that if this lane was open at the time appellee purchased his land and secured his private right of way, and that Freís had left it open for public use, and had sold lands adjoining the lane and called for it as a boundary, that this would constitute a dedication, and would authorize appellee to maintain the suit. Flow, conceding that these facts would constitute cogent evidence tending to show a dedication upon the part of Freís, still it must be admitted that they would not be conclusive evidence of such dedication. Freís may have left the way open for public use under such circumstances as to amount to a license in the public to so use it, until such time as he might see fit to withdraw the land from that use by revoking the license; and the fact that he called for this lane as a boundary in selling portions of his land is by no means conclusive of his intention to dedicate it to the public, for it is not called for as a public lane or public road, but is called for as “ what is known as Frel’s lane.”
Again, the court charged the jury in effect, that if appellee, from the time he purchased his land up to the death of Wm. Freís, had used said lane as an open space continuously without intermission, that appellee could maintain the action. This charge is also erroneous, for that appellee may have used the open space during that time by permission of Freís, under such circumstances as to amount to no more than a license revocable at the pleasure of the owner of the land.
For the errors indicated, we conclude that the judgment ought to be reversed and the cause remanded.
Reversed and remanded.
