#### Skeen and Others v. Lynch and Others.

August, 1842,

Lewisburg.

(Absent Brooke and Baldwin,* J.)

Dedication—Acts of Ownership by Owner—Effect.†— Case of a town established on a river, by the plan of which there was an artificial line, leaving a strip of land between the lower range of lots and the river. An express dedication of the strip being claimed to have been made by the proprietor to the use of the citizens, and the proof.of such dedication consisting of his declarations, the evidence of which was uncertain, the claim defeated by proving that subsequent acts of ownership, inconsistent with such claim, were exercised over the strip by the proprietor and his representatives, for a long period, and with the acquiescence of the citizens.

This was a bill in the circuit Court of Alleghany county, by Hugh Iyynch and others against Robert Skeen and others, asserting a right, common to the plaintiffs and the other inhabitants of the town of Covington, • in a, strip of ground along the margin of Jackson’s river.

By an act of assembly passed the 22d of January 1818, a tract of 25 acres of land near the mouth of *Dunlap’s creek on the north side of Jackson’s river, the property of dr. James Merry, was established as a town, as soo*i as the same should be laid off into lots with convenient streets. The land was accordingly surveyed *125and laid off into lots, with streets; and bjr the plat which the surveyor made for the proprietor, the lower range of lots did not extend to the river, but there was an artificial line beyond which neither the lots nor the cross streets extended, and between that artificial line and the river, there was a narrow strip of land. A public sale was advertised in 1818, to be made of the lots; and at the time for the sale, the plat was exhibited. Persons declined bidding, the crier states, because they considered that if dr. Merry retained the strip as private property, it would be a great injury to the inhabitants of the town, on account of the water. Many depositions were taken to prove what occurred at the sale: but they varied so much, that it seemed to the judge who delivered the opinion in the court of appeals, “difficult to determine what was the extent of the concession intended to be made to the inhabitants” in respect to the strip. The judge stated the following to be the tenor of those depositions : “According to some, Merry declared the strip was left open for the public, unless it should be used for a canal, millrace, or street. One witness proves that he intended it for a canal and public landings: another, that he intended it for a canal, if required; if not, for the benefit of the town. According to some, he wanted it for a canal and millrace, and, said if a millrace was conducted through it, the people should have free access to the river, and he would construct bridges over the race at the cross streets.” After the declarations so made by the proprietor, the lots were sold by the plat. The proprietor continued afterwards in possession of the strip, except so much as was necessary to continue the cross streets to the river. He inclosed, *'cultivated, and erected houses upon that portion of the strip between the lower end of the town and the first cross street, (this portion being one fourth of the length of the strip;) and he granted permission to certain persons to make brick on another portion between the first and second cross streets. During all the time between the sale and the death of the proprietor (a period of nine or ten years,) he exercised acts of ownership over the property, without any complaint on the part of the trustees of the town, or the citizens. After the death of the proprietor, to wit, in 1831, the strip (except the parts used in continuing the cross streets to the river) was offered at public sale by his representatives. No claim for the public was then set tip by the trustees of the town, or the inhabitants. On the contrary, the representatives of the proprietor, at the earnest solicitation of some of the citizens, laid off an alley adjoining the rear of the lower range of lots, and with this arrangemént all seemed satisfied. The residue was then sold without objection. During the succeeding year, this suit was brought; the plaintiffs owning each a lot binding on the strip, to which they derived title from the purchasers at the original sale; and the defendants being the executors of Merry, and the purchasers of the strip from those executors. By an agreement between the purchasers, they seem to have considered the streets across the strip as private ways; but those streets have remained open for the public use. No attempt to obstruct their use led to the filing of the bill. The only cause for it was the obstruction of the use of the residue of the strip.

The cause came on to be heard the 22d of September 1835, upon the bill, answers, exhibits, and examinations of witnesses. On consideration whereof, the circuit court decreed a perpetual injunction restraining the defendants and all others from obstructing, building upon, or enclosing the strip, and also from wasting *and’ destroying the trees growing thereon, and required the said strip to be left open and free to the use of the plaintiffs, and' proprietors of lots in the town of Covington, and the public generally, as a public easement, common passway, and outlet to. the river. And the court further decreed that the defendants, within ninety days, remove from the said strip the enclosures, buildings and obstructions which were-placed or erected thereon by James Merry in his lifetime, or by the defendants since; and that the plaintiifs recover their costs.

From this decree, on the petition of Skeen and the other defendants, an appeal was allowed.

G. N. Johnson, for appellants,

argued, that the terms of sale of the lots could be gathered only from the written advertisement, and the plat of the town exhibited at: *126the sale, from" which it appeared that no part of the" strip was intended to be sold: that the parol evidence of Merry’s declarations at the time of the sale was inadmissible, both upon common law principles of evidence, and by the statute of frauds. Starkie’s Evid. part 4, p. 996; 1 Sugden on Vendors 31, 132, 136, 143; Jones v. Edney, 3 Camp. 284 But if the parol evidence was admissible, he contended that it was vague, contradictory, and not worthy of respect; that so far as it tended to shew that Merry had parted with his property in the strip to the public or to the town, it was outweighed by the facts that for many years after the sale of the town lots, and as long as he lived, he cultivated, enclosed, and exercised other acts of ownership over the strip, without objection, and that no objection was made by any one at the time of the public sale of the ground in question by Merry’s executors after his death. The true construction of the evidence was, that Merry, at the sale in 1818, promised the purchasers that their access to the river should not be cut off, *while in other respects he reserved the absolute property in the strip to himself; and this promise had been fulfilled by leaving open an alley along the river range or lots, and by extending the cross streets of the town across the strip to the river.

John B. Baldwin, for the appellees,

argued, that parol evidence was admissible to ascertain or explain the terms of the sale, and that the statute of frauds had no application; first, because here had been part performance; and secondly, because this was the case of a dedication of land to public use, which might well be by parol. Eor these propositions he cited 1 Sugden on Vend. 134; Fife v. Clayton, 13 Ves. 546; Trueheart v. Price, 2 Munf. 468; Grantland v. Wight, 2 Munf. 179; Mayo v. Murchie, 3 Munf. 358; Wainwright v. Read, 1 Desauss. 573; Cannon’s ex’or v. Mitchell, 2 Desauss. 320; City of Cincinnati v. lessee of White, 6 Peters 431. He contended that the evidence sustained the allegation in the bill, of a dedication by dr. Merry of the whole strip to the public use.

G. N. Johnson, in reply,

sought to distinguish this case from those cited on the other side; and in relation to the doctrine of parol dedication to public uses, he said, that to support such a dedication, it must be shewn that the uninterrupted possession and control of the property was surrendered by the owner and enjoyed by the public; which was not the case here, but on the contrary, dr. Merry continued to use and occupy the *property*as his own.

*

He had been counsel for the appellees.

†

Dedication — Streets — Acceptance — Presumption — Estoppel.—in Virginia there may be a valid acceptance of an easement in a town without any distinct act of recognition by the corporate authorities of such town. The mere user, however, by the public, of the *locus in quo*will not of itself constitute an acceptance without regard to the character of the use, and the circumstances. and length of time under which it was claimed and enjoyed. Where property in a town is set apart for the public use and is enjoyed as such, and private and public rights acquired with reference to it and to its enjoyment, the law presumes such acceptance on the part of the publicas will operate an estoppel *in*pais, and preclude the owner from revoking the dedication. Harris v. Com., 20 Gratt. 840, citing *Skeen*v. Lynch, 1 *Rob.*186, as substantially affirming the above doctrine.

Same—Same—Presumption—Acts of Ownership by Owner.—The principal case is cited in City of Richmond v. Stokes, 31 Gratt. 716, to the point that where streets and alleys have been opened by the owner of the Soil, and used'by the-public, with his assent, as- a *125public thoroughfare for years, a dedication of the easement may he presumed, and the continued and uninterrupted use, with the knowledge and acquiescence of the owner will justify the presumption of a dedication to the public, provided the use has continued so long that private rights and the public convenience might be materially affected by an interruption of the enjoyment. But any acts of ownership by the owner of the soil will repel the presumption.

The principal case is cited in *foot-note*to City of Richmond v. Poe, 24 Gratt. 149.

Same—Obstruction—Encroachment.—The principal case is cited in Buntin v. Danville, 93 Va. 205. 24 S. E. Rep. 830, to the point that when dedication has become complete and irrevocable, no obstruction of the subject of the dedication, or encroachment upon it by the original owner of the soil, or by any one else will affect the dedication, or impair the right of the public to its benefits, unless the land so dedicated has been abandoned by the public, or by the proper authority. See *foot-note*to Harris v. Com. 20 Gratt. 833.

Same—How Made—Statute of Frauds.—The principal case is cited in Buntin v. Danville, 93 Va. 211, 24 S. B. Rep. 830, to the point that a dedication is not within the statute of frauds, and need not be by deed or other writing, but may be as effectually and validly done by verbal declarations.

Railroads in Streets—Rights of Lot Owners to Com*pensation.—See foot-note*to Talbott v. The Richmond & Danville R. Co., 31 Gratt. 685. The principal case is cited in Spencer v. Railroad Co., 23 W. Va. 423.

ALLEN, J.

The plaintiffs do not allege, or attempt to prove, any special contract with the owners of the river range of lots for the easement claimed. If the easement was granted, it was for the benefit of the public generally. The objections, therefore, founded on the statute of frauds, do not, it seems to me, apply to the case. A grant or writing is not necessary to

*constitute a valid dedication of an easement to the public. Where streets and alleys have been opened by the owner, and used by the public, with his assent, as a public thoroughfare for years, a dedication of the easement may be presumed. Jarvis v. Dean, 3 Bing. 447; Lade v. Shepherd, 2 Strange 1004; City of Cincinnati v. White, 6 Peters 431. Nor is it essential, in the investigation of this case, to determine where the fee rests. In Mayo v. Murchie, 3 Munf. 358, the court decided that parol testimony was admissible, in aid of the inference deducible from the printed proposals, to establish an equitable title of the inhabitants of the town as tenants in common, and decreed a release to the trustees, for the use of the inhabitants, of the land dedicated. In the case of the City of Cincinnati v. White, 6 Peters 431, the court seemed to be of opinion that cases of this kind are exceptions to the general rule requiring á grantee, and that “there may be instances where the fee may remain in abeyance until there is a grantee capable of taking, where the object and purposes of the appropriation look to a future grantee in whom the fee is to vest. But” (continues the court) “the validity of the dedication ' does not depend on this; it will preclude the party making the appropriation from reasserting any right over the land, at all events so long as it remains in public use) although there never may arise a grantee capable of taking the fee.” Nor is any particular form or ceremony necessary in the dedication of the land to public use. S. C. 440.

If, then, no deed or writing be essential to such an appropriation, and its validity do not depend upon the existence of a grantee, it remains to enquire whether the evidence in this record shews such an .appropriation to the public, as precludes revocation by the original owner.

*On this point I have felt much difficulty. It may be collected from the whole testimony, that the proprietor did not intend to part with his entire interest in the strip of land in question. If a canal should be constructed, the right was reserved to permit it to pass through the strip; and in that event, as he would have reserved it for that purpose, he must have been regarded as the owner of the fee in respect to that subject, and entitled to compensation as such. He also, according to the greater part of 'the witnesses, reserved the right to conduct a millrace through it: and for this purpose it must have been regarded as private property. In either event, the easement to the public in this narrow strip would have been of little orno value, viewing it as a common. Perhaps the general terms used by witnesses speaking from memory at the distance of many years, can be best understood by a consideration of the circumstances attending the-transaction. The use of this strip, except where the cross streets terminated, so as to continue them to the river, could be of little importance to the citizens of *127the town. But free access to the river was essential to the comfort of all. By the plan of the town which was exhibited, the cross streets terminated at the line constituting- the artificial boundary of the town on the north side. Bidders might well hesitate, who for the first time, on seeing the plat, discovered that they might at an3’’ moment be cut off from the water. Accordingly, the crier says that the strip was considered a great injury, on account of the water. One of the witnesses speaks of Merry’s engagement to erect bridges at the cross streets, over anjr millrace he might conduct along the strip; another understood him to promise free access to the water. If the declarations of the proprietor are to be understood with reference to the free access to the water, they are rendered consistent with the privileges he certainly intended to retain in the land; privileges which would *be inconsistent with the unreserved appropriation of the subject to the public.' And I should incline to the opinion that if the case rested here, this last would be the proper construction to be given to the testimony. But there are circumstances which it seems to me are decisive of this question, and remove the doubts which the parol testimony, if it stood alone, might create.

In the first place the plat of the town excluded the strip: the rear of the river range of lots was bounded by an artificial line. The case of Barclay &c. v. Howell’s lessee, 6 Peters 498, was a controversy respecting a strip of ground in the city of Pittsburg, along the Monongahela river. Prom the plan of the town it appeared that all the streets and alleys were distinctly marked bjr the surveyor, and their width laid down, except Water street, which lies along the river. No artificial boundary was laid down as the limit of this street: its northern boundary was given, but the space to the south was left open to the river. The court, commenting on this fact, said, ‘ ‘If a line had been drawn in the plat along the southern limit of this street, there would have been great force in the argument that the ground between such limit and the water was reserved by the proprietors. This would have been the legal consequence from such a survey, unless the contrary had been shewn.’* In the case under consideration, there was such artificial boundary; and the evidence leaves it doubtful to what extent the proprietor agreed to relinquish his right to the ground between it and the river.

In the second place, the proprietor continued in possession of the strip. One part of it was enclosed and cultivated by him, and houses were erected by him on it; on another part, he permitted persons to make brick. He lived nine or ten years after the sale, and during the whole period exercised acts of ownership over the property, without any complaint on the part of the trustees of the town, or the citizens. The use of property by *the public with the assent of the owner, will, under particular circumstances, justify the presumption of a dedication to the public, provided the use has continued so long that private rights and the public convenience might be materially affected bjr an interruption of the enjoyment. But any acts of ownership would repel the presumption. Thus, in Roberts v. Karr, 1 Camp. 262, note, the placing of a bar across the street, to prevent the passage of carriages, was held to rebut the presumption of a dedication. In Lethbridge Y. Winter, 1 Camp. 263, note, it appeared that a gate had recently been put up in a place where a gate formerly stood, but where for the last twelve years there had been none : this was held to destroy the presumption. The principle of these cases applies, it is true, to dedications presumed from the long acquiescence of the owner, and not to express dedications: but where, as in this case, the evidence of the express dedication is uncertain, such acts of ownership, exercised with the acquiescence of those interested to resist them, furnish persuasive evidence that the dedication was not understood, at the time, to be as extensive as some of the declarations now deposed to would imply. With the arrangement after the death of dr. Merry, by which an alley was laid off adjoining the rear of the lower range of lots, all seemed satisfied, and the residue of the strip was then sold without objection. If the claim now set up was valid, then was the time to assert it. The citizens probably preferred securing a certain benefit, to the assertion of a questionable right. Whatever the claim was, it seems to me that it must, after these transactions, be considered as abandoned in respect to all the strip between the different cross streets. These streets, having been continued across the strip to the river, and being necessary to afford that free access to the water, which, under any view of the testimony, was assured to the citizens, have been dedicated to the public. To the use *of them they are clearly entitled, both from the express declaration of the proprietor at the time of the sale, and his subsequent assent to their enjoyment. It does not appear that any attempt has been made to obstruct the use of them. It is true, that by an agreement between the purchasers of the strip, they seem to consider these as private ways. But they have remained open for the public use. I think it would have, been premature to institute proceedings to protect the public in the enjoyment of this easement, until some act of disturbance was shewn. I therefore think the court should have dismissed the bill, without prejudice to the right of the plaintiffs, and other citizens of the town, to the use of the cross streets as extended through ' the slip of ground in question to the river, in the event of any attempt hereafter to disturb them in the enjoyment thereof; and, under all the circumstances, without costs.

The other judges concurring, a decree was *128entered reversing the decree of the circuit court with costs, and dismissing the bill, without costs in the court below, and without prejudice, as declared in the foregoing opinion. _