held, that the company were bound to maintain the same, and that the burden of repair could not be thrown upon the county. Per Lord Ellenborough, C. J.: "The act authorizes the company not only to alter, repair, and amend, but even to discontinue any of the works before authorized to be erected; amongst others, any bridge. And the inhabitants of a county can never have, by law, a permanent burden thrown upon them to repair a bridge, of which they have not the permanent use and enjoyment secured to them." And Le Blanc, J., said: "The authority given to the company to make the cut, which rendered the highway impassable without a bridge, must create an obligation in them to erect the bridge, though the word authorize in the act would not of itself create the obligation.'

2

§ 166. The observation of Le Blanc, J., in the last case, that even were nothing said in the act about building the bridge, yet its erection and reparation is required by law from the proprietors, as a compensation to the public, is fully confirmed in the case of Rex v. Kerrison. Here the act empowered the commissioners for making navigable the River Waveney, to cut, dig, or use the ground or soil of any persons for the making, enlarging, straightening, or altering the channels of the river, or for making any new channel, &c., but was silent with respect to bridges or other such erections. By virtue of this act, the commissioners cut through a highway and rendered it impassable, and a bridge was built over the cut along which the public passed, and which had been repaired by the proprietors of the navigation. The Court of King's Bench held, that the proprietors, and not the county, were liable to repair. And per Lord Ellenborough, C. J.: “The undertakers of this navigation have a duty, as it seems to me,

1 Rex v. The Inhabitants of the Parts of Lindsey, in the county of Lincoln, 14 East, R. 319; and see Inhabitants of Cambridge and Somerville v. Charlestown Branch Railroad Co. 7 Met. (Mass.) R. 70.

2 Rex v. Kerrison, 3 M. & S. 526. As to a partial dedication of a bridge, see ante, § 139.

arising out of the execution of their own powers under the act. The act enables them to cut new channels, as occasion should require, and if occasion requires them to cut through a public highway, their duty is to furnish a substitute to the public by means of a bridge." And Le Blanc and Bayley, Justices, observed, That although the proprietors had a right to make a cut through the highway, and so far were not wrongdoers; yet if they had left it so, they would have been wrongdoers, and might have been indicted, and charged with cutting across the highway, and if they had pleaded the act of Parliament, the Court would have determined upon it, that they had power only to make the cut sub modo, that is, providing a substitute to the public.

10. How a Dedication may be lost.

§ 167. Dedication, having been rendered complete by acceptance, cannot be revoked by the donor or by any one claiming under him, so long as the land remains in the use to which it was dedicated.1 A distinction has, however, been drawn in this respect between a dedication and a reservation; the latter being deemed revocable at the will of the land-owner. Thus, where water lots were granted by a city, and on a map, annexed to the grant, a square was designated, on one part of which the word "market " was written, and on another " reservation for a market," and a market having been erected there, remained for twenty years, when it was removed with the consent of the adjoining land-owners, and the space afterwards leased to a railroad company; these facts were said to indicate only a reservation for public use, and, it was said, there was this distinction between dedication and reservation; that,

1 Penny Pot Landing v. Philadelphia, 4 Harr. (Penn.) R. 79; Curtis v. Keesler, 14 Barb. 511; Adams v. Saratoga & Washington Railroad Co. 11 Barb.

414.

whereas the former was irrevocable and stripped the owner of all power inconsistent with the terms of the dedication, the latter imposed no obligations on the owner, who might exercise as complete dominion over the land as before the reservation.1 But whether this distinction could be applied to public ways, as in the case just cited, is questionable; and it is not easy to perceive the precise shade of difference between what is here termed a reservation and what has commonly been denominated. a license; though it is easy to see that, from analogous facts in the case of a road or street, the jury would be more likely to infer a dedication than a mere license.

§ 168. But, though a dedication cannot be revoked by the donor, the highway itself may be relinquished or discontinued by the public, or, according to some authorities, may be lost by long-continued non-user or by adverse possession for twenty years, though, according to other authorities, no lapse of time or cessation of user will deprive the public of the right of passage over a road, which has once been a highway, whenever they please to resume it. Upon the discontinuance or extinguishment of a highway, however it may happen, the land reverts to the owner of the fee discharged of the public easement or right of passage.2

1 Pitcher v. New York and Erie Railroad Co. 5 Sandf. 587.

2 Post, Chap. VII. Abandonment and Reversion.

CHAPTER IV.

ASSESSMENT OF ESTATES BENEFITED BY THE OPENING, WIDENING, OR IMPROVING STREETS.

1. DIFFERENCE BETWEEN TAXATION 3. PROCEEDINGS UNDER AUTHORITY AND ASSESSMENT.

2. AUTHORITY TO ASSESS.

TO ASSESS.

1. Difference between Taxation and Assessment.

§ 169. Ir has been shown in a former chapter, that in recompensing an owner of private property, for appropriating a portion of it to public use, the benefit or advance in value given to the remaining portion by means of the use to which another portion of it is to be applied, may be taken into account by the appraisers, in awarding compensation. In this aspect, it may be, that where a corporation is authorized to take land by an act of the legislature, the appraisers under the act, are under no obligation to make any compensation whatever, in money, the benefit and the invasion of property being a fair offset each to the other.1 But suppose that the benefit which the landowner reaps, exceeds the value of the land covered by the way,2 and the way to be laid out, or when laid out, improved at the public expense, can the legislature constitutionally authorize, in

1 Livermore v. Jamaica, 23 Vt. R. 341; Rexford v. Knight, 15 Barb. (N. Y.) Sup. Ct. R. 627; S. C. on Appeal, 1 Kernan, (N. Y.) R. 308; Pennsylvania Railroad Company v. Fisher, 8 Burr, (Penn.) R. 445.

2 Commonwealth v. Sessions of Middlesex, 9 Mass. R. 388; Hill v. Mohawk and Hudson River Railroad Company, 3 Seld. (N. Y.) R. 152; Hill et al. v. Mohawk and Hudson River Railroad Company, 3 Seld. (N. Y.) R. 133,— Court of Appeals.

this case, an impost upon the owner, for the benefit he has thus received? The question, at first view, would seem to be one that respects the extent of the power of taxation, the distinction between which power and the power of eminent domain, has already been briefly stated.1 Or it may be said to embrace another question, viz., whether an obligation imposed to pay for opening a street, for example, or of improving one, in a ratio to the benefit derived therefrom, is strictly a tax, it being no burden, though for practical purposes it may go by that designation, as it usually does.

§ 170. Such a distinction has been attempted upon the assumption that taxes are levied without discrimination, equally upon all the subjects of property, whilst assessments are only levied upon some specific property, the subject of supposed benefit conferred, to repay which the assessment is levied.2 Thus Spencer, J., in delivering the opinion of the Superior Court of Cincinnati, was not prepared to concede, that “taxation" and "assessment" are in all respects identical, and must, therefore, be levied in the same mode. For he says: "An assessment is doubtless a tax, but the term implies something more; it implies a tax of a particular kind, predicated upon the principle of equivalents, or benefits which are peculiar to the persons or property charged therewith, and which are said to be assessed or appraised according to the measure or proportion of such equivalents. Whereas a simple tax is imposed for the purpose of supporting the government generally, without reference to any special advantage which may be supposed to accrue to the persons taxed." And, in a case in New

1 See ante, Chap. II. § 77. See Rights of Taxation and Eminent Domain, treated of in the American Law Register for March, 1857, p. 289.

2 Wharton, in his Law Lexicon, says: "That a tax is money which a nation pays to its servants, for the management of its business, and is granted and controlled by the House of Commons."

3 Ridenow v. Saffin, 1 Handy, (Superior Court of Cincinnati,) R. 473. But the legislature, of course, has no right to impose a tax and apportion it, upon the