Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-03-30

lie use, and that the plsintiff wss emily entitled
l 10 use so much OF the street upon which his lot
ronted asto allow him egress and insre5s from
and 10 his lot, and the Court said that the i'm
piled contract on the part of Mr.. StuyVesaut
was substantially this; " engage to give the
/, ground Tor the streets upo1 condition that the
corporation shai ratify IT," in this case there
was a plan Of a large piece Of ground in the
city, upon which streets were laia out, showing
their intersections with other streets, but the
Commissioners dlsregaried iris plan and com
PEELED Mr.. Stuyvesant 10 conform bis subdivis-
ion to the pubic plan. In the case OF Living
) stop VS.. the Mayor, Is Wendell, 8jJ il appears
that the streets ard squares through Mr. Lfy.
public plan long before he Subdivided
and sod his property fronting on these
PEELED to adopt these ~streetsi If he sold at q !,
aud although hecenied any Intention TO ded-
laid out, ne was held by the Court to have done
so. though lac claimed To have been demsgsd
SSO,OJO' By an attentive examination OF this
case 4 Will 6e seen that a properly oEnar In
the city of New York was entirely without
remedy; for whether he subdivided aud sold
his property according to the plan or not. the
Com mis- ioHrrs c3nId al anv tiTna condeT1f No
street through The property, and pay for IL by
assessing It's value against he adiOining lot:
the only difference being this, If the property
owner sGodlYidcd and sold his lots according
to the puhlc plan he was held to have dedica-
ted the ground over which the street was laid
out to the use Of the pub ic-the zee remaining
In him F.; tue COmni siOners assessed nominal
damages FOR the fee OF the street, and a. the
same Tune made compensation by max
ing a nominal assessment against The
40 -iniD property. II there had been
no subdivision and sale OF other ded
i~ca'ion, tie Commissioner assessed tbs
vrlue of the ground and made compensation
in the same way. This is he character OF tie
New YORK city cases, and they establish tive
propositions: Fist, ii ~ owner eff property
III that city caused a 2 "A o be mads OF ii, and
sold lois according TO hat plan, he was not
held to have dedicated tee streets on that plan
unless his plan was adopted by the corporation
| owner subdiyic6d aad sold his property ac-
eoraing to the pu6iic plan, he was he'd 70 have
dedicated the streets whether he intended to
do 10 or not 10 my opinion, these New York
city cases hSve ceen FRI quently misappIied. Il
do not Thing that they arc authority upon the
| general doctrine OF dedication, and I am con
nrmed in this opinion by decisions in that
State upon questions OF dedication arising G Sc
where than in the city. Indeed, this IS ex-
Pressiy stated in Bad5au vs., Mead, IA Bar
Tour, 323. In ttat case there was O map
with streets laid OutshOwIng their Intersections
regularly filed in the proper once, a
public sale Of The lots at auction according to
utEosTaphi copies Oh me map puDllcly exhibit
ed,anda proclamation tnEtthe proprietor EOuld
cause the streets laid down on the map 10 re |
worked oy n certain time, and the map was re.
IerTed TO In conVsyanCe5 for descriptions OF the
land sold, and Yet the Court held that all these
things did not necessarily constitute q dedica.
ton. 1t is true that this was q contest between
the original proprietor and the purchaser, and
not a contest between the proprietor and tine
corporation; but the Court say that % be.
tween the proprietor. and the corporation /
thsie must have been acceptance by the public
10 make it efec;ual. The case of Clements VS..
TIC NLlidBc U W est hoy, 10 barbour El. also ]
dscldes mat there must be an acceptance on
the part of the public before the dedication be.
comes effected, although there may have been
n clear Ihlentoa 70 uedlcatet AID until taat ac-
oeptanpe haS been Eigniied in the manner pre-
sorlbed by the statute of that State, the Inu-
nlcipal authorities would not have the right to /
remove distractions from the streets or alleys.
In the case OF the City Of Cincinnati vs..
White, 8 Peters, 43i, Mr.. Justice Thompson, in
delivering the opinion of tue Court, says that
the town OF Cincinnati, and that a ''plan was
maze ana approved OF DE al the DrOnriEfnrS I
and according TO which the ground lying be- /
tween front sheet and the river, and so located
as TO include the premises in question, was set
apart as a common, for the use and benefit OF
the public forever, reserving only the right OF
ierry, and no lots were laid out on the land
thus dedicated as a page 1851. And
again: In the present ca e, the tact Of dedi-
cation to public use Is not len. to inference
from the circumstance that the land has been
enjoyed as a common foe many years, but the
actual appropriation for that purpose by tde
most positive ahd conclusive evidence" Page
Ia Barclay vs.. Howell, 6 Peters, 4as, the
controversy was about a lot Of ground
nongahela river in the city of PitUsburg.
The city OF PittsbuTg vas laid ont in the
geyor, as agent for the proprist0rs, Bnd q map
made by him which sh WED that the piece Of
ground was oDe1 between the street and the
river, ana at the sale made announced that It
was 10 remain SO for the uss OF the public.
From these and other facts thu Court concludes
tnat IN 70 was q characterization Of the ground
IN tbe controversy by the original proprietOrs
through their agent the L Ost OF the evidence
upon which the Supreme ca TT based its con
c,usiOa having been Improperly excluded from
the jury by the Circuit Court, the case was re-
versed. In New Orleans VI. tas Cntted 5 ates,
that the lana in controversy had been actually
Dedicated 10 the public usS fr 3 quay or leYse,
as 1t Is nov called, ia laying Odt the town, as
appesIeu Iroln me nap, confirmed o. long use.
ln these three cases the supreme Court II the
United states addressed themselves, INST, to tns
question rs 70 whether here had been a dsdt-
cation in fact; ana, ia each Of the eases, con-
Guided tha' there had b en- an actual inJeE-
The Gaze o. Yates VS.. Judd, IS Wisconsin rs,
was a controversy between Two uersO1S claim
ing a water front in the city o. Mflwauk e, un-
der the original prJp istors. and the Supreme
Court, efter discussing the facts, says: - Re
heging then that the owners could deaioate,
and that they intended 70 do IL only remains /
TO be dele rminCd WHISTLER their aoLs have been
raiiaed on tbs part of the public 50 as TO make
the dedication complete thus clearly recogni-
Zing the doctrine tea the intention TO dedicate
must appear. In the case of MeisbrCd VS.. the
Chicago and Northwestern Railroad Company,
- W i5consln, 6OI, the pro 4 was aoGnGaD5th a.
Miller, tue original proprietor, under wh1m
Weis1rOd claimed. had Gsearly and in the most
unequiyoeal manner dedicated the st-ip of
ground an controversy TO the use of the public.
This case is also reported in Is WiSconsiD, Al,
aud there 1t is ture the Court lay great slfess
on tbs making and recording a plat, but the
Ccu-t admits that it only raises a
which is liable TO be defeated.
THIS QUESTION o. dedicat on sgaiu cam be-
fore the supreme COurt o. The Unued states in
the aRse Of tire United States VS.. Chicago, Z
EOWarQ 40, Inc OElLe1 states Government
having determined 10 sell the land upon which
Fort Dearborn was located, caused the land 20
be surveyed and plated IS an addition to thf-
C ago. A plat was made diYi ling The land into
blocks and lots, with iHJsIsecting streets; THIS
plat, together wil a description CT the same,
was recorded in tle office of tie Recorder OF
Cook COY ais, under the title OF Fot Dear born
Addition 10 ChicBgn. By TINS plat several
streets then existing in C"icago were prolon ged
and laid cut through all the property which
belonged 10 the Government. But a purtign Of
the property was expressly reserved from sale,
ana marked by detiad lines, 1ettered Line OF
observation !" The vJmmon Council OF Chica-
50 attempted TO open the streets through this
The Government enjoined them,
ana ths questlOa- was whether or not the
streets had been dedicated TO the public use; {
and the Court held that they had not The ques- {
ton again arose in the case OF Irwin VS.. Dixon,
in Howard, p ge 10, and was very elabo Rtely
discussed. TIE controversy in that case was
as TO an open space of ground between the de- {
warehouse and the Potomac river, in :
the city of Alexandria and ths proof showed
inst ths open sfaes hat been G=ed Tor a great
the defendants, the owners OF the warehouse. s
rpe latter enclosed 9 part of this space, ard
the complainant died his bill to nave the en-
c'osare removed. 1
In delivering the unanimous opinion OF the
Csurt, Mr.. Justice ." Woodbury. says! " There is
no claim that such = highway W2s ever legally
lsid out By the ci y or county of A~Iexandriasl I
but The plaintil5 in the court below ely for its
5AlsteHee enie{y, Il not entirely, on a ussr OF
thirty yesrS." And after showing, by authOYi-
ties cited, that this period, in ordinary cases, !
fNao ~ 41AN9 AC4z EAOA ~ dHNEtLNhE An9 7
presum 2tton of a dedication, he says: " Butthe
must slsn be under such circum-
as to Indicate an abandonment OF the :
1sa exclusively to the community by
the owner OF the soil, 4Camp, n. z. l6, LCamp.
T. 252; II EAST SO; 3 d.. and e. z65 Z Biugh. /
p, Picks. 20. Hence there must not have 3,
as here, repeated dedicatfons made by the 1
Inconsistent with any dedication. 7
Leigh 546, 665 8 B,ngh., Il6. Nor must the acts
ana words be Cqulvocal or ambiguous on the
subject. In short the idea ola dedieA zion to the .
lie o. n use Ofland foy a public road mast |
op the Clear assent of the owner, 7 LeiSh {
$ A. and L. $50; l Hill lS9, 1911 l9 Wendell +
8 Bingh. 44S l Camp. N. p. 262: 6PsteSs :
8 Kents Coad AS 9 PICK. .256. these two s
Eases last cited show conclusively that If an I
lWner Of property is doing acts fTOm which a J
will be ordinarily presumed, accom- :
parry those acts by other acts idcOnsiStsns 2
with an intention 10 dedicate the property, the {
1resum ption does not arise it is not re2utted, ?
OF il never arises; the act OF dedica- /
ion must be clear and unamblguous. And I
II Washburn On Easements, rage 132, It Is said i
to constitute 8 dedication of land 10 a public p
there must 4 st be an intention 4
o dc it on The part of the owner. Z
Without that, nc dedication can take place. {
ln page l4 Washburne again says; z
" The acts and declarations Of tue landowner :
the intent, TO dsdi, ate bis land 10 c