Post v. Pearsall.

pressly in the grant, or impliedly, by converting the grantor or his heir at law into such a trustee.

VIII. The right claimed in this case is not an easement or an incorporeal right of any kind. It is corporeal, and can only be exercised by taking exclusive possession of the premises and occupying the same to the exclusion of the owner; that is, by ousting him from the possession, and committing an act for which ejectment would lie.

After advisement, the following opinions were delivered:

By the CHANCELLOR. Nearly the whole law on the subject of customary rights, easements, and public highways, and places in the nature of highways or public walks for health or recreation, and also of dedications for charitable or pious purposes, and the various decisions on these subjects, both in this country and in England, are collected in the very learned and elaborate opinion of Mr. Justice Cowen, who gave the reasons for the decision of the supreme court in this case, and in the case of Pearsall v. Hewlett, which is also before us for decision at this time. Little, therefore, remains for me but to apply the legal principles thus collected, to the facts of the case under consideration.

The plaintiff in error claims a prescriptive right for all the inhabitants of the state, or the public at large, to enter the locus in quo, which is unquestionably the soil and freehold of Pearsall, and to use it as a landing place to deposit manure brought thither by water, and to load and unload manure and other materials thereon. If this was claimed as a customary right in behalf of the inhabitants of a town, hamlet or other local district, it might be necessary to decide whether a right to deposit manure and other materials upon the land of another, and let them remain there until the depositor could make sale thereof, or until it suited his convenience to remove them, was such an easement as could be prescribed for as a customary right, without reference to any dominant tenement; or whether it was a profit a prendre, or such an interest in the soil and freehold of another as could only be prescribed for in a que estate. In the great contest between

Post v. Pearsall.

the ball players and the rabbits, relative to the right of deposit and the privilege of scratching within the golfing links of St. Andrews, which case was twice before the House of Lords in England, the late Lord Chancellor Eldon, although he amused their lordships at the expense of the Scottish judges, the magistrates of St. Andrews, the officers and students of the college, and of the golfing society, and was a little smutty withal, had in that case a strong impression upon his mind that a customary servitude or easement could not be supported, which would deprive the owner of the servient tenement, of the whole beneficial use of his property. See Dempster v. Cleghorn, 2 Dow's Parl. Rep. 40. I presume that strong impression was founded upon the established principle of the common law, that a custom to be good, must be reasonable; and I doubt whether any member of this court would consider a custom reasonable which should allow the community at large to deposite manure, without restriction as to kind or quantity, upon his premises, within a few rods of his mansion; and to suffer it to remain there until it suited the convenience of the depositors to remove it; especially if it should be bone manure, a commodity with which it seems the farmers in the neighborhood of the locus in quo have recently found it profitable to enrich their farms. Indeed, in its legal effect upon the rights of the owner of the soil, it is very difficult to distinguish the occupancy claimed in this case from the temporary occupancy by fishing huts, which was claimed in Cortelyou v. Van Brundt, 2 Johns. R. 357. But as the law is well settled that a customary accommodation in the lands of another, to be good, must be confined to the inhabitants of a local district, and cannot extend to the whole community or people of the state, the right claimed by Post, the plaintiff in error, cannot be sustained as a customary right or easement consistently with the rules of law.

Nor can it be sustained as an ordinary easement, founded upon a presumed grant from the owner of the premises in which the right or easement is claimed. Such easements are either personal and confined to an individual for life merely, or are claimed in reference to an estate or interest

Post v. Pearsall.

of the claimant in other lands as the dominant tenant; for a profit a prendre in the land of another, when not granted in favor of some dominant tenement, cannot properly be said to be an easement, but an interest or estate in the land itself. The three personal servitudes of the Roman law, use, usufruct and habitation, and which are still retained in! the laws of France and of Spain and of Holland were not, strictly speaking, servitudes, but limited estates in the land; and they are now separately provided for as such by the Napoleon Code: one article of which expressly declares that servitudes cannot be personal, and that they can only exist when imposed upon an estate and for the benefit of an estate. Art. 686.

Neither can the right claimed in this case be sustained upon the principles upon which the dedication of highways and streets for the passage of carriages and other conveyances, and of public squares in cities and villages as promenades for the health and exercise of the inhabitants, have been declared and adjudged to be public rights. Public places of this description, as well as public highways, were well known even in the days of Justinian, and were protected by the same pretorian interdict from all obstructions which could interfere with the free passage of the people, without the consent of the public authorities. Poth. Pand. de Just. lib. 43, tit. 8, art. 1. They were equally well known in the ancient law of France, and embraced the public squares or promenades, where the whole community had a right to go; and the places where the public fairs were held. 14 Guizot's Repert. art. Public. Although at the time of the publication of the laws of William the Conqueror there were but four great roads in England called the king's highways, yet no one can doubt that there were, even at that time, inBumerable thoroughfares, and many squares and open spaces, which had been dedicated to the use of the people at large, for passages and promenades; and the number since that time has probably increased an hundred fold. The law of dedication, therefore, which was applicable to thoroughfares, was properly applicable to market places and promenades, although they were not highways in VOL. XXII.

55

Post v. Pearsall.

the ordinary sense of the term. But a public place for landing and depositing manure must, from its very nature, be confined to a very few individuals; and would generally be permitted as a mere neighborhood accommodation, while the owner of the land on which it was deposited had no immediate use of the premises himself. The only right, therefore, which would be likely to be acquired by long user would be a right of easement or accommodation in favor of the owners of the farms, for the use of which the manure had from time to time been brought; so as to authorize their successors in such ownership to prescribe in a que estate, I think, therefore, it would be most unreasonable to apply the principles of dedication to such a case. A dedication for pious or charitable purposes does not vest a legal right but merely creates a pious or charitable trust, which under our statute relative to religious corporations is turned into a legal estate. Dutch Church in Garden street v. Mott, 7 Paige, 77. Curd v. Wallace, 7 Dana, 192. Such a dedication, therefore, has no applicability to the case under consideration.

The rights to public watering places on Long Island can be sustained either as customary rights or as easements appurtenant to the estates which have been supplied with water therefrom, for a sufficient time to raise the legal presumption of a grant. The right to take water from the pond of another is a mere easement, and not a profit a prendre. Manning v. Wasdale, 2 Harr. & Woll. 431. I think the judgment of the court below in this case was not erroneous, and that it ought to be affirmed.

By Senator EDWARDS. The first question which seems naturally to present itself for consideration in this case is, whether the locus in quo was dedicated to the public use? How are lands dedicated for such purpose? They are dedicated by the acts of the owner or by user. dedicated by the acts of the owner, no ceremony is necessary. They may be other, or to a body corporate for the use deed, and then there must be a grantee as in other cases of

When they are particular form or dedicated to anof the public, by

Post v. Pearsall.

grant. When the fee does not pass, the dedication need not be by deed; it may be effected by some unequivocal act of the owner manifesting his intention to dedicate the land to public use, and thereby induce individuals to vest property, which would be materially affected were the property again to be resumed by the owner. Where the owner of land has laid out village lots intersected with roads and public squares, it has been repeatedly held and very justly, by various judicial tribunals, that such roads and public squares are dedicated to public use. Woodyer v. Hadden, 5 Taunt. 125. The State v. Wilkinson, 2 Verm. R. 80. The City of Cincinnati v.

White's lessees, 6 Peters' R.

431.

Livingston v. The

Mayor, &c. of New-York, 8 Wendell 85. Wyman v. The

Mayor, &c. of New-York, 11 id. 486.

The Trustees, &c.

But it is not the

oj Watertown v. Cowen, 4 Paige, 510. fee of the land that passes in such cases; the public have only an easement in the land; the fee itself, for all other purposes, remains in the original owner. Cortelyou v. Van Brundt, 2 Johns. R. 357. 1 Burr. 143. 2 Strange, 1004 1 Wils. 107. 6 East, 154. Jackson v. Hathaway, 15 Johns. R. 447. Hence it is not necessary there should be a grantee, as in the case of actual grants, and as the court say in 6 Peters, 436, this forms an exception to the general rule from the necessity of the case. But the case under review does not appear to be one in which the land has been dedicated to the public use, either by a direct grant or by any unequivocal act of the owner of the fee, from which it can be inferred he intended to dedicate it to the public. Nor is it so insisted on the part of the defendant's counsel. It appears to be unnecessary, therefore, to examine more minutely that class of cases which have been cited by the counsel relative to such dedications; but it is insisted by him that there has been a public user for such a length of time as to presuppose a grant, and therefore a dedication of the locus in quo, and on this particular point the case appears to rest.

As to the length of time the public are suffered to use property in order to constitute a dedication, it has been variously held. When the dedication has been made by the act of the owner of the fee, no particular time is necessary.