8. Acceptance.

§ 157. It has been said, that dedication to be effectual, must be accepted, and this acceptance may be either of a part or of the whole of the land appropriated.1 Such an acceptance may, undoubtedly, be made by a formal act of the body charged with repairing the highway, or by any act on its part sufficiently implying its acceptance; but whether such an acceptance may be made by the public generally, as evidenced by a mere use of the way, is a question upon which the decisions have not been entirely uniform.2 The earliest reported case, in which this point appears to have been deliberately considered, was that of Rex v. The Parish of St. Benedict, decided in 1821, in which the defendants were prosecuted for not repairing a highway. It appeared in this case that the road was originally made under the provisions of a local act, by a clause in which two private roads, therein particularly described, were directed to be set out for the use of such persons only as were entitled to use an old occupation road, running in the same direction as the latter of the two roads. The commissioners, acting in exe

1 State v. Trask, 6 Vt. 355.

3

2 See The Glusburne Bridge case, 2 W. Bl. R. 685; 5 Burr. 2594; and Rex v. The West Riding of Yorkshire, 2 East, 342, and note, for the law as regards bridges on this point. In the latter case, it was held, that where a bridge, built under a turnpike act, in a highway, had been used by the public for about two years, the county were bound to repair it without any specific acceptance; "though," it was said, "if built in an imperfect and inconvenient manner, with a view to throw the onus of rebuilding or repairing immediately on the county, it might be treated as a nuisance and indicted as such."

3 Rex v. The Parish of St. Benedict, 4 Barn. & Ald. 447. Previous to this case, roads had been held to be highways, in cases where there appears to have been no other evidence of acceptance than public use. Lade v. Shepherd, Strange, 1004; Jarvis v. Dean, 3 Bingh. 446. Rex v. Lloyd, 1 Campb. 260, in which Lord Ellenborough remarks: "I think that if places are lighted by public bodies, this is strong evidence that the public have a right of way over them,” which seems to have been the first intimation that an adoption by the parish would be more conclusive evidence of acceptance than mere general use, for he does not intimate that any adoption is necessary.

cution of this power, by their award, dated June 27, 1803, set out the road presented as one of these two roads. From the date of the award, however, until the finding of the presentment in 1820, the road had been used by the public without interruption as a carriage-way. The question was, whether, under these circumstances, this was a public road which the parish was bound to repair. In discussing this question, Bailey, J., said: "I do not accede to the doctrine that, because there is a dedication of the road by the owner of the soil, and the public use it, the parish is therefore bound to repair. I think there ought to be, in addition to that, evidence of an acquiescence by the parish in that dedication. In the case of bridges, there always is what is to be considered as an acquiescence by the county. The county is not liable except for bridges made in highways; the making of the bridge, and thereby obstructing the road, while the bridge is making, may be treated as a nuisance, and the county may, if it think fit, stop its progress by indictment, and the forbearing to prosecute in that way is an acquiescence by the county in the building of the bridge. But in the case of a parish, they have no power to prevent the opening of a road or to obstruct the public use of it. It would be most unjust if, by the public use of what was at first a private road, the burden of repairing it could be removed from the persons to whom the use of it was at first. confined, and cast upon the parish. Admitting, therefore, that in this case there was a dedication to the public, and that the road was found to be a public benefit, I think that in consequence of the want of some act of acquiescence or adoption by the parish, they are not liable to the repair of the road.”

1

§ 158. And in two subsequent cases, in which this point came incidentally before the Court, the same view seems to

1 Rex v. Mellor, 1 Barn. & Adolph. 32; and Rex v. Cumberworth, 2 Barn. & Adolph. 108.

1

have been taken. It was, however, admitted that where a way had been recognized as public in an act of parliament for making streets, squares, &c. it was not necessary that it should be adopted by the parish to make it a public way,1 But in Rex v. Leake,2 which was an indictment for not repairing a road, made by user on a dyke, built by trustees under an act of parliament, the absence of any acceptance by the parish was held to be immaterial. Per Parke, J.: "The absence of repairs by the parish is, indeed, a strong circumstance in point of evidence to prove, that the road is not a public one, the fact of repair has a contrary effect. But the conduct of the parish, in acquiescing or refusing an acquiescence, is, in my opinion, immaterial in any other point of view. The judgment of Mr. Baron Bailey, in the case of Rex v. St. Benedict, was cited to the contrary; but I must say that I cannot accede to the doctrine, nor am I aware that there is any authority for it." Per Littledale, J.: "The adoption by a parish does not necessarily, as a matter of law, make the road public, nor does their refusal to adopt it, prevent its being so. If the parish have repaired it, it raises a strong presumption that it is a public highway. The adoption by the parish is no more than the use of it by the public. The parish are merely part of the public." And Denman, C. J., said: "I by no means think any act of adoption necessary to make a parish liable to repair a common road. I am of opinion, that if it is public, the parish is of common right bound to repair it." By this decision the law in England is probably settled, that no acceptance by the parish is necessary; at least in no subsequent case has the question been raised, though there have been later cases in which it does not appear that an acceptance by the parish was proved.3

1 Rex v. Lyon, 5 Dow. & Ry. 499.

2 Rex v. Leake, 5 Barn. & Adolph. 469; 2 Neville & Man. 583.

3 Regina v. Patrie, 30 Eng. Law & Eq. R. 207; Surrey Canal Co. v. Hall, 1 Man. & Gr. 392.

§ 159. In the United States, the cases in which this point has been directly raised, are comparatively few, and the decisions have hardly been sufficiently uniform or authoritative to establish any general rule; though some American Courts of high authority, influenced, however, by local statutes, incline against the view, that a highway may be established independently of the action of the body charged with its repair. In Massachusetts, in the case of Hobbs v. Lowell,1 Shaw, C. J., remarked: "It is manifest that there is very little analogy between the character, powers, and duties of parishes in England and those of towns in this Commonwealth. Almost the only point of resemblance is, that they are respectively bound to repair all highways within their limits, where other provision is not made by law for the purpose. The great point of difference is, that in this Commonwealth, towns have the power in a certain course of proceedings, to lay out townways, which are in effect public highways, within their limits; they are also recognized as parties, in all proceedings for establishing new highways, for the support of which they are to be responsible." In that case, however, the Court were of opinion, that the town had by its acts recognized the road in question, and therefore gave no decisive opinion as to whether its acceptance was necessary. But in a case decided by the same Court, in 1849,2 it was said: "If there were any doubts on this point previous to the statute of 1846, c. 203, it seems to me they must be removed by that statute. The statute provides, that no way heretofore opened and dedicated to the public use, and not already become a public way, shall become chargeable upon any city or town of this Commonwealth, unless such way shall be laid out and established by the city or town in the manner prescribed by the statutes of this Commonwealth." It was also decided that a way could not be

1 Hobbs v. Lowell, 19 Pick. 405.

2 Bowers v. Suffolk Manufacturing Company, 4 Cush. 332.

come a highway until the town or city had incurred the obligation to maintain it by establishing it as such, but that, previous to that, the opening it to the public amounted only to a license and not to a grant or dedication.

§ 160. In Vermont, in a case where a way to a mill, built and maintained by the owner of the mill, had been in common use for more than twenty years, it was held, in an action against the town for insufficiency, that a public road was one laid out by proper authority, as the selectmen of the town or a committee appointed by the Supreme or County Court, the evidence of which is the survey, &c. or the record; and that an individual could not lay out a way and compel the town to adopt it.1 In New York, it has been decided that "streets and roads dedicated by individuals to public use, but not accepted by the local public authorities or declared highways by statute, are not highways within the meaning of the highway acts, (acts which have been in force for more than half a century,) and there is no law by which any one can be compelled to keep them in repair."2 And in Virginia, a road dedicated to the public must be accepted by the County Court on its records before it can be a public road.3

§ 161. In Indiana, in an action for damages suffered by reason of the insufficiency of a bridge, the Court said: "The bridge is upon the Cumberland or National road, and that road at the point where the bridge in question is situate, is not upon and along any street in Indianapolis, according to the original plat of the town, and there was no evidence upon the trial that the town had ever adopted the Cumberland road as a The town did not build this bridge, and certainly it is

street.

1 Page v. Weathersfield, 13 Vt. 424; Blodget v. Royalton, 14 Vt. 288.

2 The City of Oswego v. The Oswego Canal Co. 2 Selden, 257; Badeau v. Mead, 14 Barb. 328; Clements v. West Troy, 16 Barb. 251. In the last case it was held, that acceptance could only be made by instituting the proceedings prescribed by statute for laying out and opening highways.

3 Kelly's case, 8 Grattan, 632.