license to sell the intestate's real estate for the payment of debts. But this supposes, that no act of legislation has provided for cases of this description.1 128. An occupant of premises required for the purposes of a highway, may have an interest in those premises, which, without strictly falling under the meaning of a legal interest, is yet highly valuable, and which, but for the passing of the act, he might have hoped to enjoy for a prolonged term, such as an interest in regard of the good will of a business, the hope of a beneficial renewal, tenant's fixtures, improvements, and the like. An interest, however, of this kind is too slight and precarious to be made a ground for compensation, except there are conclusive words in the act of the legislature embracing it. It will not, therefore, be included in the terms of an act which speaks simply of the value of the tenant's unexpired term and interest.4 2 3 § 129. The grantor of a tide-mill and mill-pond, who had reserved the right of boating and rafting through the pond, and of using the same as a depot for lumber, it seems, has no such proprietary interest in the premises, by virtue of such reservation, as to entitle him to become, or to render it necessary that he should be made a party, under the Revised Statutes of Massachusetts, for the recovery of damages occasioned by the laying out and construction of a railroad through the granted premises. "We are not prepared to say," said Shaw, C. J.," that the legal distinction between an estate and an 1 Boynton v. Peterborough and Shirley Railroad Co. 4 Cush. (Mass.) R. 467. Money, if paid into court by a railroad company, for land taken under the Land Clauses Acts, from a person who was under mental imbecility, and who continued in that state until his death, but was not the subject of a commission of lunacy, will be ordered, after his death, not to be reinvested, or considered as land, but to be paid to his executor. Flamark, ex parte, 3 Eng. Law and Eq. R. 243. 2 Walford on Railways, 188. 3 Ibid., referring to cases decided on Hungerford Market Company's Act, 2 B. & Adol. R. 341, 348; 4 Ib. 596, 600, n.; 9 Adol. & Ell. R. 463. 4 Rex v. Liverpool and Manchester Railway Co. 4 Adol. & Ell. 650. 1 easement in the premises taken, will always determine whether one has or has not a proprietary interest, rendering it proper to make him a party or not, with the owners in a claim of damages. Possibly an easement for a mill privilege, for example, may be so large and valuable as to render an interest therein much more important than that of a lessee for years, or a reversioner." In England, a party entitled to an easement over lands purchased by a railroad company, cannot, under the general provisions of a railway act, maintain an action for acts done upon those lands by the company to his easement, (so far, at least, as such acts are done in the execution of the purposes of the act,) but ought, as soon as any damage is actually sustained, to claim compensation under the act.2 § 130. An alien resident, in one of the States of the United States, who owns land, under a special law of the State, may sustain a suit in the Circuit Court in relation to such land, and has a right to claim compensation, when it is taken for public 1 Davidson v. Boston and Maine Railroad Co. 3 Cush. (Mass.) R. 91. 2 Walford on Railways, 188. 3 Bonaparte v. Camden and Amboy Railroad Co. 1 Bald. (Cir. Ct.) R. 205. 9* CHAPTER III. HIGHWAYS BY PRESCRIPTION AND DEDICATION. I. PRESCRIPTION. II. DEDICATION. 1. DEFINITION AND HISTORY. 2. THE PARTIES TO DEDICATION. MAY BE QUALIFITD. 4. WHAT CONSTITUTES A DEDICA 5. WHAT IS SUFFICIENT EVIDENCE TO PROVE A DEDICATION. 6. WHAT IS SUFFICIENT EVIDENCE ΤΟ REBUT THE PRESUMPTION OF DEDICATION. 7. LIMITS OF DEDICATION. 8. ACCEPTANCE. TION ON THE PART OF THE 9. DEDICATION OF BRidges. 10. How DEDICATION MAY BE LOST. I. PRESCRIPTION. § 131. PRESCRIPTION, in its more general acceptation, is defined to be "a title, acquired by possession, had during the time and in the manner fixed by law." It is also said that "a prescription by immemorial usage, can, in general, only be for things which may be created by grant; for the law allows prescriptions only to supply the loss of a grant.”1 1 Now, inasmuch as the public cannot take by grant, prescription, in its strict sense, has no application to highways. "As the law now exists in this State," says Senator Furman, in Post v. Pearsall," and as it has in substance existed ever since the formation of our constitution, the only way that an individual can acquire a right in real estate is, by grant, or by an adverse possession of twenty years under a claim of title, in which case 1 Cruise Dig. Tit. XXXI. Ch. 1, § 11. 2 Post v. Pearsall, 22 Wend. (N. Y.) R. 444. 1 the law presumes a grant; and, as to the public, the only way in which they can at the common-law acquire an easement in the lands of another is by dedication." But, nevertheless, there are cases in which the doctrine of prescription has been applied to highways. Thus in the case of Odiorne v. Wade,1 which was an action of trespass quare clausum fregit, the defendant having put in a plea of common highway from time immemorial, and proved the existence of the way for more than sixty years, there being no evidence showing its commencement, the Court held, that the duration of the way was sufficient to support the plea of prescription. And again, in the case of Reed v. Northfield,2 Shaw, C. J., in delivering the opinion of the Court, said: "We think it clear upon principle, that public easements, as well as others, may be shown by long and uninterrupted use and enjoyment, upon the conclusive legal presumption from such enjoyment, that they were, at some anterior period, laid out and established by competent authority. And, not unfrequently, an uninterrupted use of a way, on the part of the public, for a period of twenty years or more, is spoken of as constituting a title by prescription. But, more properly speaking, such use, unless by virtue of some statute," is but a fact from which a dedication to the public may be presumed. These cases, therefore, have seemed to me to be more properly treated under the head of dedication. 1 Odiorne v. Wade, 5 Pick. 421. 2 Reed v. Northfield, 13 Pick. 94. 3 See also, Commonwealth v. Low, 3 Pick. 408; Stedman v. Southbridge, 17 Pick. 162; Folger v. Worth, 19 Pick. 108; Valentine v. Boston, 22 Pick. 75; Hicks v. Fish, 4 Mason, 310; Williams v. Cunningham, 18 Pick. 312; Brownell v. Palmer, 22 Conn. 107; State v. Gregg, 2 Hill, (So. Car.) R. 387. 4 In New York, and probably in many of the other States, there is a statutory provision to the effect, that all roads not recorded, which have been, or shall have been used as public highways, for twenty years or more, shall be deemed public highways. 1 R. S. 521, § 100; (3d ed. 636, § 120.) II. DEDICATION.-1. Definition and History. § 132. Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by or on behalf of the public. A common public road, originating in such an appropriation and acceptance, is a highway by dedication. The interest, which the public thus acquires, is merely an easement or right of passage over the soil; the original owner still retaining the fee, together with all rights of property not inconsistent with the public use, and becoming, whenever that use is relinquished or lost, revested with as absolute and exclusive a dominion as he possessed previous to the dedication. 1 § 133. The doctrine of dedication is of purely common-law origin. In the civil law, public parks, squares, bridges and highways were recognized, indeed, and protected by suitable legal regulations; but, in that law, there was no principle strictly analogous to that of dedication. In that law, the public right flowed from a higher source. The state or nation was the paramount lord of the soil; the individual held subject to its ultimate ownership. This relation led to the distinction between what is called the dominium eminens and the dominium vulgare, the former denoting the title which the public reserved to itself, the latter the right which individuals enjoyed by its permission. By an exercise of this reserved right of dominion in the State, the individual occupant might be devested of his estate, whenever the public safety or convenience demanded; and, instead of acquiring an easement, the public entered at once into an actual ownership of the land itself. In the common law, the principle of dominium eminens was not carried to the same extent, and hence the difference between the two systems as regards dedication. The earliest reported case, at common law, in which this doctrine is as 1 Poth. Pand. de Just. Lib. 43, tit. 8, art. 1. |