Post v. Pearsall. of a copyhold tenant against his lord; or where the party pleading is a stranger to the title. Salk. 335. 4 T. R. 718. Custom cannot be pleaded in favor of the whole nation, for then it becomes the common law. Prescription is set up in favor of individuals who, because they have been in the enjoyment of the right or interest claimed, during the period of legal memory, which is in England fixed at the reign of Richard I., the law presumes that the party claiming, had originally a grant or conveyance for the right claimed. A profit or interest in the soil of another, or as it is termed in the Norman French, a right of profit a prendre in alieno solo, cannot be claimed by the residents or inhabitants of a town or village, but must be prescribed for in a que estate by some person or persons capable of taking a grant; and it forms part of their inheritance as an estate in the freehold, and it goes to a man and his heirs. Prescription could never be set up in favor of the whole nation, and in this country it cannot properly exist at all. This particular branch or side of the English law arose in feudal times, when the superior lords were actually the owners of the soil of the whole kingdom, excepting the royal demesne and the patrimony of the church, and apportioned the same out to their knights, retainers and copy holders, on the condition of certain services; and attached to those estates the right to take common of pasturage, of wood, of water, &c. as they deemed the same neccessary, both for their own interests and to enable their retainers to cultivate and improve their lands to the best advantage. It was, however, soon discovered that various individuals, residents and owners of estates in towns, and corporations, (which then began to have an existence,) required for their convenience in trade and travel, the right to pass over some of these lands; and from that grew up the easement by prescription; which is not an interest or profit a pendre, but only a servitude, or right to pass over or use the surface of the soil; and this distinction is fully recognized by Gateward's case, 6 Coke's R. 60. This easement by prescription, is always to individual persons, or to VOL. XXII 56 Post v. Pearsall. a corporation, and to those who are not incompetent to receive a grant. But none of these customs, prescriptions, or easements by prescription, applied to the public; they could acquire no right under them. But it has long been held one of the greatest advantages of the English law, that it has always accommodated itself to the increasing wants of a thriving commercial people; and, therefore it is, we find the interest of the public was not long lost sight of, by the English courts, even at a very early period. Although the public could not prescribe for a custom for a profit or interest in the soil of another, and neither could they prescribe for an easement, yet we find it laid down as law, that there may be a custom for an easement, as a right of way on another's soil, 1 Saund. 341, n. 3; and that a multitude of persons may, not prescribe for an easement, although they may claim a custom for an easement. 3 Cruise's Dig. tit. 31, Prescription, ch. 1, sec. 21. This was an approach toward the modern doctrine, but still there was some of the old leaven adhering to it. This custom to give the public the right, must be for the time of legal memory; and this doctrine if continued to be adhered to by the courts in England, would limit the acquisition of those rights on the part of the public, and might be the means of retarding the onward progress of the nation. In order to obviate this difficulty, the easement by dedication to the use of the public, obtained its existence. This principle arose from the exigencies of the community; and the courts in that country seem to have regarded those exigencies as calling upon them liberally to apply it, and not to throw the community back upon those antiquated rules which, though very well adapted to their situation and circumstances at the period when they were applied, would now, in the advanced state of society, be entirely inapplicable, and if resuscitated, would be the fruitful source of almost interminable disputes and legal controversies. The first reported case in England, in which this principle of dedication was adopted, is that of Lade v. Shepherd, 2 Strange, 1004, which was decided at Hilary term, eighth year of the reign Post v. Pearsall. of George II., in the year 1735, now more than a hundred years ago. In that case, a dedication to the public of a road or highway was sustained upon mere user; and that was done at the first promulgation of the doctrine. Having thus deduced the progress of the English law to the adoption of the principle of dedication, and that too at a period which makes it obligatory upon our courts, and which also constitutes it a part of the common law of our state, it is necessary to advert for a moment to the situation of the law as peculiarly applicable to our own country. When our forefathers settled this land, they brought with them the common law as it existed in England, and such parts of the statute law of that nation as were applicable to the situation and circumstances of the colonists; which common law, together with the decisions of the English common law courts, including among them that referred to in 2 Str. 1004, at the adoption of our constitution in 1776, became the common law of our government and direction, except so far as the same was inconsistent with that instrument, or was abrogated by statute; and it is not pretended that the principle of dedication as laid down by that decision comes within that exception. I shall, therefore, assume that the principle in question formed a part of our common law at the very earliest period of our national existence, now more than sixty years past; and that the subsequent decisions of our courts were merely in affirmance and in extension of that principle, and did not give it its vitality or existence. It was admitted, however, on the argument, that the third side of the triangle of the English law, the Law of Customs, was never brought to this country; and that there is no such thing in this state as a custom by prescription, for an interest or profit in the soil of another; which, indeed, is the legal proposition decided by the supreme court in the case of Cortelyou v. Van Brundt. 2 Johns. R. 357, and is the extent of the law as decided by that case. This being the fact, and the progress of the English law being had in consideration, together with the peculiar principles which apply to those customs by prescription, and the fact that they never were extended to the Post v. Pearsall. public, it is very difficult for me to see or realize in any manner the force or analogy of those principles to the subject now under consideration. As the law now exists in this state, and as it has in substance existed ever since the formation of our constitution, the only way that an individual can acquire a right in real estate is, by grant, or by an adverse possession of twenty years under a claim of title, in which case the law presumes a grant; and as to the public, the only way in which they can at the common law acquire an easement in the lands of another is, by dedication. It is true the owner of land, having an undoubted right to give the public an easement in it, may do so, if he chooses, by deed; and there being no grantee to take by indenture, it may be by deed poll; but that is not the usual way of proceeding. The acts constituting the dedication are almost universally, if not entirely, in pais. It then becomes requisite to ascertain what is a dedication, and what the evidence of it; and then to what subjects has this doctrine been applied, in order to see if the matter in question is the subject of dedication, and whether the proof given and offered is that usually adduced to sustain such an act in favor of the public. What is a dedication? It is an act by which the owner of the fee gives to the public an easement in his land; and a parol dedication is good, and is generally the only one made; and although there is no grantee to take, it vests in the public, and is different from ordinary grants, and is to be construed upon principles to meet the nature of the case. 6 Wendell, 656. 3 Verm. R. 526. 17 Serg. & Rawle, 93. 3 Verm. R. 533. 6 id. 364. 6 Peters, 435. There is no particular form or ceremony necessary in such dedication of the use to the public. 6 Peters, 435. "The simple act of throwing open the property to the public use, without more, is sufficient to create this right, and no other formalities are essential; the case is therefore anomalous, and general utility is the principle which sanctions this mode of conveyance; and whatever may be the owner's real intention, if his conduct is at variance with his purpose, he cannot afterwards contest the Post v. Pearsall. right of the public, who perhaps have embarked in projects and formed expectations, upon the strength of the appearances he held out to them, which it would be ruinous to disappoint." Hamm. N. P. 193, 4, Am. ed. of 1823. To apply the principle thus laid down to the present case, is a matter of no difficulty. The ancestor of the defendant in error throws open this landing to the public more than twenty years ago, and his descendant suffers it to remain open; and not only so, but as if to put the matter beyond a doubt that he intended it to be a dedication to the public use, puts up a fence between the land he immediately occupies and this landing, thus marking out its extent; and he not only does that, but having planted some trees upon it which afforded shade to those who resorted there, in order to protect those trees from injury, he puts a fence immediately around them, thereby showing that he intended that the other part forming nine-tenths of the landing was still to remain open, and to be used by the community at large, with their horses and teams, and that to such an extent, that those trees would be destroyed unless specially protected: and to show that was his view, he kept that fence around them only until they had grown beyond the reach of the cattle; and having held out these appearances to the public, they having bought and sold their farms with a reference to the convenience thus afforded for bringing that necessary article, manure, from a distance, by water, to within a short ride of their land, and thus enabling them at a reasonable expense to cultivate the same, and the public having for forty years unloaded their manure at this landing from sloops, under the eye of this owner, he living within a few yards of this landing, and that without any intimation on his part that they were using it under a license from him. Whatever therefore may have been his real intention, or that of his ancestor, they having kept it to themselves, and their conduct having been at variance with what is now claimed was their purpose, he cannot now contest the right of the public. For this reason, the circuit judge was in error when he told the jury, on the |