Samuel Hobbs versus The Inhabitants of Lowell, 19 Pick. 405

Shaw C. J. delivered the judgment of a majority of the Court. This cause was submitted to the decision of the Court, without argument; it has been a considerable time under considerati >n, partly because it involves a question of great public importance, and partly because the Court have not been able to come to a result with entire unanimity.

The question is, whether the street in which the accident happened has become a highway by dedication, so that the town of Lowell, and now the city of Lowell, is bound to keep it in repair, liable to an indictment for not keeping it in repair, and responsible to individuals, on the statute, for damage sustained by the want of such repair. In the case of Hinckley v.

Hastings, 2 Pick. 162, the Court, in giving their opinion, after recognizing the principle of dedication of a highway, as admitted and practised on in England, add, “ but it is not known that in this Commonwealth, a way has ever been made by dedication.” We do not consider that this was a decision of any point in that case, because there was no evidence by which an express or implied dedication of the soil, by the owners, to the public, could be proved.

It was the case of a highway, laid out by a public body, the selectmen of Boston, having competent authority to do the act, but the record of which was so imperfect and ambiguous, as to render the act void for uncertainty. The defendant also relied upon a use and enjoyment for six years, which is clearly not sufficient to establish a public easement, by prescription or presumed grant, by adverse use.

The only other evidence was an executory agreement between a vendor and purchaser of real estate, that a street should be laid out over the land of the vendor, adjoining the land sold ; this manifestly implied that a street should be laid out, in due legal form, by the selectmen having competent authority by law for that purpose, and so it seems to have been understood and acted upon, by all the parties interested.

This case raises the question, whether under any possible circumstances, a highway can be established and recognized in this Commonwealth by dedication, that is, by an appropriation by the owner of the soil, to the use of the public for a highway, and the adoption thereof by the public ; because it is scarcely possible to imagine a case of dedication more clearly and fully proved, than in the present case. The owner of the soil laid out and fitted this

section of road for public tiavel; the old highway, for which it was substituted, was not only afterwards disused, de facto, but was obstructed, so as to render it physically impassable. The town of Chelmsford, whose duty it was to keep this

section of the old road in repair, if they did not intend to adopt the new one as a substitute, instituted no prosecution against those who obstructed it, but, on the contrary, the surveyors of highways, the selectmen, and the corporation itself, acquiesced in the change, until the territory was set off into a new town. The way in question was an open highway in actual use, when the town, by the act of incorporation, became de facto liable to support and repair all highways within its limits, and they have taken no measures to reestablish the old road from that time to the present.

This highway was so in actual use by the public, from 1822, when it was opened, until 1828, when the accident occurred. The act of the owners of the soil in appropriating the land ,to public use as a highway, is as distinct and unequivocal, as could possibly be, without an instrument in writing; and the actual use of the highway by the public and the acquiescence by all persons in authority, whose assent could be considered requisite, are as clearly proved as tacit acquiescence ever can be. The question then recurs, whether there can be a highway by such dedication.

The principle seems to have been long recognized as a settled principle of the common law. In Lade v. Shepherd, 2 Strange, 1004, it was held, that by such dedication, the public became entitled to the use of the land for all purposes of passage, although the owner did not thereby become divested of the absolute right of property in the soil. But the same is true of the right of every proprietor, whose land is appropriated to the public for a highway, in however formal and solemn a manner such appropriation is made.

In many recent cases, the principle has been recognized as a settled principle of the common law, although many cases have occurred, in which questions have been discussed, as to what acts constitute such a dedication. The great question has been, whether particular acts have been such as clearly to indicate the intent of the owner of the soil to appropriate it to public use.

In a case, where a passage had been opened through private grounds, from one point in a public street, to another point in the same, though circuitous and narrow, yet being to some extent useful, and having been long used by the public, it was held to be a highway by dedication. Rex v. Lloyd, Campb. 260; Rugby Charity v. Merryweather, 11 East, 376. And such dedication may be presumed from circumstances, from which the assent of the owner of the soil may be inferred. Stafford v. Coyney, 7 Barn. & Cressw. 257; Rex v. Barr, 4 Campb. 16; Jarvis v. Dean, 3 Bingh. 447.

The general principle was well stated by Chambre J. in Woodyer v. Hadden, 5 Taunt. 137. This case was much discussed; there was a difference of opinion, whether the facts in the case established a dedication, though alhagreed in the general principle.

The learned judge says, “ No particular time is necessary for evidence of a dedication ; it is not, like a grant, presumed from length of time : if the act of dedication be unequivocal, it may take place immediately : for instance, if a man builds a double row of houses opening into an ancient street at each end, making a street, and sells or lets the houses, that is instantly a highway.” The general doctrine seems to result from a few well settled principles of the common law. The case supposes a highway defacto in actual use by the public, and who shall say that it is not a highway to all purposes ?

Not the owner, for he has assented to it, and is in effect estopped by his own act in pais. Not the public, for they have the use and benefit of it. Since the case of Hinckley v. Hastings, 2 Pick. 162, the case of Cincinnati v. White, 6 Peters, 431, has been decided by the Supreme Court of the United States.

This distinctly recognizes the doctrine of dedication, as having a competent foundation in the principles of the common law as adopted and practised upon in this country, for the establishment of a highway ; indeed its fitness and utility are recognized as peculiarly applicable to this country, where, in case of most of the cities, thickly settled towns and villages, so rapidly springing up, the. right of the public to the streets and highways rests almost invariably upon this foundation.

The Only serious difficulty in the application of this doctrine, arises from the question, whether the assent of the public is necessary, to the complete dedication of a highway, and if it is, how that assent is to be manifested or withheld. The objec tian is, that it would be a great hardship upon towns, if an individual could lay open a way upon his own land, throw it open to the public, then oblige the town to charge themselves with the maintenance and repairs of it. In a very recent case in England, Rex v.

Leake, 5 Barn. & Adolph. 469, it was held, that to constitute a highway, by dedication, the assent of the parish was not necessary ; but when a highway had been in fact used by the public for a series of years, the parish were indictable for not repairing it. It is manifest however, 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 town ways, 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.

But we consider that the questions whether the assent of the public is necessary to an effectual dedication, and how it is to be given or withheld, do not arise in the present case, and the Court gives no opinion upon them ; they must be considered as open for consideration whenever they occur.

In the present ease, the town of Chelmsford, the town and city of Lowell, the county and the Commonwealth, by their respective town and city officers, grand juries and public prosecutors, by forbearing to proceed against those who have stopped up the old highway, and substituted the new one for it, have respectively expressed their assent to this dedication ; and it is too late now for the city to say this road is not a public highway. The opimon of a majority of the Court is, that the nonsuit ought to be taken off, and a trial bad on the merits. See 2 Pick. 2d ed. 164, Perkins’s note 2.