Abbott v. Inhabitants of Cottage City

1. The first exception before us is to the exclusion of evidence that, from fifteen to nineteen years ago, the premises were dedicated to the public as a public square, that the dedication was then accepted by the public, but not under any statute or by vote of the town, and that public use of the premises as a park had continued down to the present time. The court ruled that no such dedication was possible in Massachusetts.

We are of opinion that this ruling cannot be sustained. The principle of dedication, although of ambiguous origin, has been recognized in this State as in force here before the St. of 1846, c. 203, (Pub. Sts. o. 49, § 94,) and as still in force in cases not within the terms of that statute. Tyler v. Sturdy, 108 Mass. 196. Hobbs v. Lowell, 19 Pick. 405. Notwithstanding the able opinion in Pearsall v. Post, 20 Wend. 111, S. C. 22 Wend. 425, so far as that tends the other way, it is now generally admitted that open squares in towns are as much within the principle referred to as highways, and it has been held in numerous decisions that such squares may be dedicated to public uses. *524Commonwealth v. Fisk, 8 Met. 238, 243. Cincinnati v. White, 6 Pet. 431. New Orleans v. United States, 10 Pet. 662, 713. Watertown v. Cowen, 4 Paige, 510. Cady v. Conger, 19 N. Y. 256, 261. Abbott v. Mills, 3 Vt. 521, 526. Commonwealth v. Rush, 14 Penn. St. 186. Rowan v. Portland, 8 B. Mon. 232, 248. Methodist Episcopal Church v. Hoboken, 4 Vroom, 13; 4 C. E. Green, 355. Bayonne v. Ford, 14 Vroom, 292. Princeville v. Auten, 77 Ill. 325. Grogan v. Hayward, 4 Fed. Rep. 161. 3 Kent Com. 450, 451.

The Massachusetts statute only applies to certain classes of ways, Tyler v. Sturdy, ubi supra, and we see no reason to doubt the suggestion of Mr. Washburn, that “the law remains, it would seem, as at common law, in respect to public squares and other subjects of dedication,” especially in view of the fact that our statutes more than once have recognized the existence of parks “dedicated to the use of the public.” Sts. 1875, e. 163, § 1; 1877, c. 223, § 1. Pub. Sts. e. 54, §§ 13, 16. Washb. Easements, (4th ed.) 235. See also Pub. Sts. c. 116, § 35; c. 27, §§ 9, 12, 50. . . . . •

. . . . Of course, a case could be imagined in which the square would have to be regarded as only a part of the highway. But we do not understand that there is any doubt that this is a park or square, properly so called; and it would hardly be contended that such parks and squares are within the St. of 1846. Oliver v. Worcester, 102 Mass. 489, 495. Clark v. Waltham, 128 Mass. 567. Veale v. Boston, 135 Mass. 187, 189.

If there has been a dedication by the owner, it is plain that acceptance by express vote of the town in which the park lies is not necessary. But it is perhaps fair to assume that the defendant’s offer of proof did not embrace any act on the part of the town, or of its officers, indicating an acceptance by it. In the case of highways, there is no doubt that an acceptance by the town must be proved. Nor has any distinction been taken between what is necessary to make the town liable for a defect, and what is sufficient to deprive the owner of his rights. Bowers v. Suffolk Manuf. Co. 4 Cush. 332, 340. Morse v. Stocker, 1 Allen, 150, 153. Durgin v. Lowell, 3 Allen, 398, 400. Hayden v. Stone, 112 Mass. 346, 351. Compare Hoboken Land Co. v. Hoboken, 7 Vroom, 540, 545.

*525But the requirement of such an acceptance, in this State at least, has always been put on the ground that the town is bound to repair the highway when established, and that it ought not to be subjected to that burden without its consent. Bowers v. Suffolk Manuf. Co., ubi supra. There is no such burden in the case of a public park. Oliver v. Worcester, Clark v. Waltham, and Veale v. Boston, ubi supra. And as the use is in the public at large, it is hard to see how an acceptance by the town can be declared necessary, except upon grounds which are hardly definite enough for judicial decision, however they might be regarded by the Legislature. The principle laid down in The King v. Leake, 5 B. & Ad. 469, that the refusal of a parish to adopt a way does not necessarily prevent its being public, although departed from in the case of ways, is law here when no special reason is shown fpr requiring the town’s assent. It will be understood that we are not considering the effect of an acceptance by the town as completing a dedication, or as affording evidence that it was complete, but only whether such an acceptance is necessary to complete it.

The necessity of acceptance, in any form, of a gift to public uses has been a little over-insisted upon, perhaps, from a desire to bring the doctrine of dedication within some more general principle of law. But apart from the considerations specially applicable to highways, which have been mentioned, it has been admitted that the so-called acceptance which is deemed necessary may be indicated by common user. Holdane v. Cold Spring, 21 N. Y. 474. See Larned v. Larned, 11 Met. 421 (before the St. of 1846); Hayden v. Stone, ubi supra; Green v. Chelsea, 24 Pick. 71, 80. Or, as we think it better put, notwithstanding the observations in State v. Atherton, 16 N. H. 203, 210, acceptance will be presumed if the gift is beneficial, and user is evidence that it is beneficial. Guthrie v. New Haven, 31 Conn. 308, 321. Hall v. Meriden, 48 Conn. 416, 431. The English law seems to be, that a gift to and use by the public completes the dedication. The cases do not speak of acceptance in terms, so far as we have noticed. Regina v. Petrie, 4 El. & Bl. 737, 743. Healey v. Batley, L. R. 19 Eq. 375, 392. The Queen v. Bradfield, L. R. 9 Q. B. 552. Vernon v. Vestry of St. James, 16 Ch. D. 449. Cincinnati v. White, 6 Pet. 440. And it is *526held in some States that no acceptance is necessary in order to vest the right in the public. Methodist Episcopal Church v. Hoboken, 4 Vroom, 21. Hoboken Land Co. v. Hoboken, ubi supra.

We have not considered whether the St. of 1882, c. 154, should be taken to put an end to common law dedication of parks after its passage, because the evidence might have warranted a finding that the dedication was complete before the passage of that act. It is familiar law that no particular length of time is necessary to make a dedication binding. If the petitioner’s land was dedicated to the public for the purposes of a park, the fact was admissible to affect the amount of damages to be allowed for the new use of the surface. Without citing more of the innumerable cases to be found in the books, or laying down any proposition broader than is necessary for our decision, we are of opinion that the evidence offered should have been submitted to the jury.

2. The ruling of the court as to the deduction of special benefits may have been correct enough as far as it went, but it did not embrace the proposition embodied in the defendant’s request, that a benefit is not prevented from being special by the fact that the estates on the opposite side of the way are benefited in like manner. This is settled law, and the jury should have been instructed accordingly. Hilbourne v. Suffolk, 120 Mass. 393. Allen v. Charlestown, 109 Mass. 243. It would be otherwise if the benefit was common to all lands in the vicinity. Parks v. Hampden, 120 Mass. 395. Cross v. Plymouth, 125 Mass. 557.

Exceptions sustained.