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serted, is that of Lade v. Shepard, which was decided at Hilary Term, eighth year of the reign of George II., in the year 1835, although the readiness with which it is there assented to, would seem to imply that it was already a familiar and undoubted principle of the law. Since that time, however, the decisions have rapidly multiplied both in England and in the United States, and the doctrine, which then was announced as little more than a mere dictum of the Court, adapting itself to the increasing demands of the public travel, has now become one of the most important branches of the law relating to highways.2

2. The Parties to Dedication.

dedication, is

§ 134. A primary condition of every valid that it shall be made by the owner of the fee. Thus, where land, as far back as living memory could go, had been used in all respects as a public street, yet, having been under lease for ninety-nine years, which had but just expired, it was held, that the permission of the tenants could not bind the landlord, and that there was no dedication, unless it was proved to have been made previously to the giving of the lease. But subject to this condition, dedication may be made by any private individual, by a corporation, provided such an act be not inconsistent with the limitations of its charter and the purpose for which it is incorporated, or by a trustee, when compatible with the

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1 Lade v. Shepard, 2 Strange, 1004.

2 Post v. Pearsall, 22 Wend. (N. Y.) R. 442.

3 Wood v. Veal, 5 Barn. & Ald. 454. Vide also, Ward v. Davis, 3 Sandf Sup. Ct. R. 502; Baxter v. Taylor, 1 Nev. & M. 13.

4 Whether dedication can be made by, or presumed against a person laboring under any of the common-law disabilities,-idiocy, infancy, coverture, &c. does not appear to have been decided; but courts would probably be guided by the analogies of the Statutes of Limitations, in so far as they furnish analogies for such a case.

5 Great Surrey Canal Co. v. Hall, 1 Man. & Gr. 392.

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scope and nature of his trust. The object of the rule is to protect the owner of the fee against public easements, originating in the unauthorized acts of his tenants, or in the acts of intermediate proprietors, without his consent; and it will not be strictly applied when this object would not be subserved by so doing. Where, therefore, the land had been used for a public footway for upwards of fifty years, during the whole of which time it had been occupied by a succession of tenants, one of whom had frequently complained to the proprietor's steward, that the public used the footway, and thereby injured the land, and yet no action was brought either by the landlord or tenant against any one who used it, the Court left it to the jury to infer a dedication, instructing them, that after a long lapse of time, and a frequent change of tenants, from the notorious and uninterrupted use of the way by the public, it might be presumed that the landlord had notice of the way being used, and that it was so used with his concurrence, and that, in this case, there was express evidence of notice, notice to the steward being notice to the landlord. For the same reason, the equitable owner of land, there being nothing but a naked fee outstanding in the trustees, may make a dedication which he cannot revoke when he afterwards comes into possession of the fee. In 1788, S. contracted with the Government of the United States for a patent for certain land, which, after some delay, occasioned by negotiations relative to payments, was, in 1794, issued to him and his associates; and, he being the only person named, vested the fee in him. In 1788, he sold his right to a portion of the land; and in 1789, the grantees of this right laid out a town, and set apart the locus in quo as a public common; in 1800, one of equitable owners took from S. a conveyance of the fee; yet it was held that he was bound by the dedication, the acqui

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1 Rex v. Leake, 5 Barn. & Adolph. 469.

2 Rex v. Barr, 4 Campb. 16; Wellbeloved on Highways, p. 61; Davis v. Stephens, 7 Carr. & Payne, 570.

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sition of the mere naked fee giving him no right to revoke it.1 And it has also been decided, that where the owners of the equitable estate makes a dedication, their trustee, holding but a legal title for their use, is bound to respect it. And where land, over which a highway was claimed, had been sold and conveyed, but the vendor immediately took back the same estate to hold in fee and in mortgage, and afterward his executor entered for condition broken, and he, or those claiming under him, foreclosed the mortgage, so that he or they came in of the old estate of the mortgagee, the original vendor was held to be owner of the land, so far as related to a dedication thereof to the public, notwithstanding his conveyance. In fact, the true rule seems to be, that acts of dedication, done with the knowledge and acquiescence of the owner of the fee, will be looked upon as his own acts, and that, for the purpose of dedication, the equitable owner will be regarded as the real owner of the fee rather than the mere naked trustee.

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§ 135. The parties to a dedication are the individual proprietor and the public at large; and it has in some cases been objected that a grant, to be valid, must be to some specific grantee, and that, the public not being such, a dedication was void. To obviate this difficulty, the Courts have sometimes classed dedication with private grants for charitable and religious purposes, where, contrary to the general rule, the fee may remain in abeyance until there is a grantee capable of taking. But the better view seems to be, that dedication rests upon principles totally distinct from those which govern grants. No grant or conveyance can be necessary to pass the fee out of the owner of the land and let it remain in abeyance until a grantee shall come in esse; for there is no one contemplated by the party to take the fee either immediately or at

I The City of Cincinnati v. White, 6 Peters, 431.

2 Williams v. First Presbyterian Society in Cincinnati, 1 Ohio State R. 478. 3 Wright v. Tukey, 3 Cush. (Mass.) R. 290.

any future day; the fee must remain either in the original proprietor or in some person to whom he shall convey it. By virtue of the appropriation which he has made and by that alone, he is precluded from reasserting any exclusive right over the land, so long as it remains in public use. His gift enures immediately to the public, and is limited only by the wants of the community at large.1

3. In what Manner a Dedication may be qualified.

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§ 136. In Austin's case, Lord Hale remarked, "If a way lead to a market, and were a way for all travellers, and did communicate with a great road, it is an highway; but if it lead only to a church, to a private house or village, or to fields, there it is a private way." 2 This language would seem to imply, that no road can be a highway unless it be a thoroughfare; and, upon this point, the opinions of Judges have been somewhat divided. In the case of The Rugby Charity v. Merryweather, which was an action of trespass, tried in 1790, it appeared that the locus in quo had been used as a common street for above fifty years, though no thoroughfare by reason of the houses at the end. Lord Kenyon, in answer to this objection, said: “And as to this not being a thoroughfare, that can make no difference. If it were otherwise, in such a great town as this, it would be a trap to make people trespassers. But in Woodyer v. Hadden, decided in bank in 1813, the decision of Lord Kenyon was very much criticized, though it did not become necessary that it should be directly overruled. Lord Mansfield condemned the decision, and, in reply to Lord Kenyon's

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1 City of Cincinnati v. White, 6 Peters, 431; Post v. Pearsall, 20 Wend. and 22 Wend. 425; State v. Wilkinson, 2 Vt. 480; New Orleans v. The United States, 10 Peters, 662; Williams v. First Presbyterian Society in Cincinnati, 1 Ohio State R. 478; Kennedy v. Jones, 11 Alabama R. 63.

2 1 Ventr. 189. Vide 1 Hawk. P. C. ch. 76, § 1.

3 The Rugby Charity v. Merryweather, 11 East, 375.

4 Woodyer v. Hadden, 5 Taunt. 126.

remark, that if it were not a highway it would be a trap to make people trespassers, suggested that its being open and inviting persons, there being no notice to warn them away, would support a plea of license. Two other of the Judges expressed their dissent still more strongly on this point, one of them asking, "How can a street like this, which is no thoroughfare, be deemed a public highway." Again, in the still later case of Wood v. Veal,' the Court leaned manifestly to the opinion that there could not be a public highway, which was not a thoroughfare, "because," as one of them, (Abbott, C. J.) remarked, "the public at large cannot be in the use of it." But afterwards, in the case of Jarvis v. Dean,2 in an action of trespass in which the locus in quo is described as belonging to one of two unfinished houses standing in a new street leading from White Conduit Street to some fields, in which also there were houses; the jury, under the direction of the Court, found said street to be a highway. But it would seem probable, from the remarks of the Court, on a motion for a new trial, that this street communicated with public roads at both ends. And in Rex v. Lloyd, Lord Ellenborough expressed the opinion that there might be a highway where there was no thoroughfare.

§ 137. In this unsettled state the law has remained in England until the recent case of Bateman v. Bluck. In this case, a passage leading from the public street up to a court, called Hat and Mitre Court, in the parish of St. Sepulchre, which consisted of fourteen or fifteen houses, and through which there was no thoroughfare, was held by the full Court to be a public highway. And on this point Lord Campbell remarked: "There may or there may not be a highway under

1 Wood v. Veal, 5 B. & A. 454.

2 Jarvis v. Dean, 3 Bingh. 447.

3 Rex v. Lloyd, 1 Campb. 260. Vide Rex v. Downshire, 4 Ad. & El. 698. 4 Bateman v. Bluck, 14 Eng. Law & Eq. R. 69.